i   ^ 


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in  2007  with  funding  from 

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http://www.archive.org/details/digestofdecisionOOkentrich 


A  DIGEST  OF  DECISIONS 

[INCLUDING  DICTA] 

UNDER  THE  FEDERAL  SAFETY  APPLIANCE  AND 
HOURS  OF  SERVICE  ACTS 


Act  March  2, 1893  (27  Stat.  L.,  531),  as  amended  April  1, 1896  (29  Stat.  L.,  85)  ; 

Act  March  2,  1903  (32  Stat.  L.,  943);  Act  April  14,  1910  (36  Stat.  L.,  298); 

Act  March  4,  1907  (34  Stat.  L.,  1415) 


With  references  to  or  excerpts  from  additional  cases  in  which  the 

Acts  have  been  construed;  Orders  and  Administrative  Rulings 

of  the  Interstate  Commerce  Commission 


PREPARED  BY 

OTIS  BEALL  KENT 

ATTORNEY,  INTERSTATE  COMMERCE  COMMIS^ON 

BT  DIRECTION  OV  THE  COMMIS9IOX 


WASHINGTON 

GOVERNMENT  PRINTING  OFFICE 

1915 


.e;!^'^ 


.\>' 


ADDITIONAL  COPIES 

or  THB  PUBLICATION  MAY>E  PBOCUEED  FBOM 

THS  SX7PEBINTENDENT  OF  DOCUMENTS 

OOYEBNMENT  PBINTINO  OFFICE 

WASHINGTON,  D.  C 

AT 

50  CENTS  PER  COPY 


PREFACE 


This  volume,  prepared  by  direction  of  the  Interstate  Commerce 
Commission,  is  designed  for  the  convenience  of  United  States  attorneys 
and  railway  officials  engaged  in  the  administration  of  the  Safety 
Appliance  and  Hours  of  Service  Acts.  It  comprehends  the  subject 
matter  of  ^^An  Index-Digest  of  Decisions  under  the  Federal  Safety 
Apphance  Acts/'  pubHshed  by  the  Commission  in  1910,  and  includes, 
in  addition  thereto,  a  digest  of  decisions  under  the  Hours  of  Service 
Act,  and  of  cases  decided  subsequent  to  January  1,  1910,  in  which 
the  Safety  Apphance  Acts  have  been  construed. 

Since  the  pubhcation  of  the  former  volume  several  controverted 
questions  have  been  settled.  In  Chicago,  B.  cfc  Q.  By.  Co.  v.  Z7.  S. 
(220  U.  S.,  559),  the  Supreme  Court  applied,  in  a  penal  action  under 
the  Safety  Apphance  Acts,  the  rule  of  absolute  habihty  previously 
announced  by  that  tribunal  in  the  Taylor  Case  (210  U.  S.,  281),  as 
apphcable  in  an  action  for  personal  injury;  and  in  Delk  v.  St  Louis  db 
S.  F.  B.  Co.  (220  U.  S.,  580),  this  rule  was  cited  as  established  law. 

In  Southern  By.  Co.  v.  U.  S.  (222  U.  S.,  20),  the  Safety  Appliance 
Acts  were  construed  as  apphcable  to  all  cars  moved  over  any  railroad 
which  is  a  highway  of  interstate  commerce. 

Other  principles  of  interpretation  not  decided  by  the  Supreme 
Court  have  come  to  be  so  well  established  by  decisions  of  the  various 
District  Courts  and  Circuit  Courts  of  Appeals  that  they  are  no  longer 
seriously  contested. 

Consideration  of  these  questions  in  the  present  volume  therefore 
has  been  restricted  in  each  instance  to  an  affirmative  statement  of 
the  proposition  involved,  together  with  a  hteral  excerpt  or  excerpts 
from  one  or  more  of  the  decisions  in  which  the  point  has  been 
decided  or  discussed,  and  appropriate  references  to  other  decisions 
in  which  these  ruhngs  have  been  cited  with  apparent  sanction,  o» 
in  which  a  similar  conclusion  has  been  reached. 

On  the  other  hand,  new  questions  have  arisen  under  the  proviso  in 
the  Safety  Apphance  Act  of  April  14,  1910,  and  imder  the  Hours  of 
Service  Act,  and,  notwithstanding  the  practical  unanimity  of  judicial 
utterance  in  the  premises,  these  points  are  frequently  contested  in 
the  courts.  In  their  presentation,  therefore,  in  the  present  volume, 
the  various  decisions  of  the  courts  in  favor  of  or  adverse  to  the  points 
involved  are  quoted  in  extenso. 


m 


lY  PREFACE. 


The  initial  citations  under  each  topic  are  from  the  Supreme  Court, 
where  the  question  involved  has  been  considered  by  that  body,  fol- 
lowed in  order  by  decisions  or  dicta  of  the  Grcuit  Courts  of  Appeals, 
of  the  Circuit  and  District  Courts  of  the  United  States,  and  of  state 
tribunals.  Decisions  or  expressions  of  opinion  at  variance  with 
what  is  regarded  as  the  weight  of  authority  are  presented  in  smaller 
type  at  the  conclusion  of  each  topic,  while  excerpts  from  the  statutes 
and  from  the  Orders  of  the  Commission  are  exhibited  in  black-face 
type. 

The  Digest  comprehends  appropriate  excerpts  from  or  references 
to  all  pertinent  decisions  pubhshed  prior  to  October  15,  1914,  and 
from  or  to  all  the  available  unpubhshed  decisions  rendered  prior  to 
that  date  in  which  the  Acts  have  been  construed.  Some  of  the  latter 
decisions  have  been  pubhshed  by  the  Commission,  but  inasmuch  as 
they  have  not  yet  been  included  in  the  Official  Reports  they  are 
shown  herein,  respectively,  as  '^imreported." 

The  text  of  the  Federal  Safety  Apphance  and  Houra  of  Service 
Acts,  with  relevant  excerpts  from  other  statutes,  will  be  found  in 
the  Appendix  (p.  237),  together  with  the  Orders  and  Administrative 
Rulings  of  the  Interstate  Commerce  Commission  pursuant  thereto. 
A  subject  index  (p.  257)  is  also  appended  for  convenient  reference  to 
the  principles  of  interpretation  comprehended  in  the  following  pages 

O.  B.  K. 

Oppioes  op  the  Interstate  Commerce  Commission, 

Washin-gton,  D.  C,  January  I,  1916 


TABLE   OP   CONTENTS 


Tables  of  Cases,  VII. 

Part  I.  The  Safety  Appliance  Acts,  1 : 

A.  Nature  and  Purpose  of  the  Acts,  7; 

B.  Construction  and  Interpretation  of  the  Acts,  9; 

C.  Scope  of  th.e  Acts,  28; 

D.  Power  Driving  Wheel  Brakes  and  Train  Brake  Systems,  65; 

E.  Couplers,  68; 

F.  Grab  Irons  or  Handholds,  88; 

G.  Standard  Height  of  Drawbars,  86; 
H.  Handbrakes,  80; 

I.  Exceptions  to  the  Application  of  the  Acts,  90. 

Part  II.  The  Hours  of  Service  Act,  102 : 

A.  Nature  and  Purpose  of  the  Act,  106; 
'     B.  Construction  and  Interpretation  of  the  Act,  108; 

C.  Scope  oi  the  Act,  120; 

D.  Exceptions  to  the  application  of  the  Act,  159; 

E.  Carriers'  Hours  of  Service  Reports,  173. 

X  Part  III.  Interstate  Commerce,  178 : 

A.  "Interstate  Commerce"  defined,  179; 

B.  Federal  Control  of  Interstate  Commerce,  186. 

Part  IV.  Construction  of  Statutes,  192 : 

General  Kules  of  Statutory  Construction  as  applied  in  cases  under 
the  Safety  Appliance  and  Hours  of  Service  Acts,  192. 

Part  V.  General  Rules  of  Evidence,  Pleading,  Practice,  and  Pro- 
cedure applied  in  cases  under  the  Safety  Appliance  and  Hours  of 
Service  Acts,  199: 

A.  Evidence,  201; 

B.  Pleading,  Practice,  and  Procedure,  211. 

Part  VI.  Actions  for  Personal  Injury,  220: 

General  Rules  of  law  applied  in  cases  under  the  Safety  Appliance  and 
Hours  of  Service  Acts,  220. 

Appendix,  235 : 

THE  SAFETY  APPLIANCE  ACTS,  237: 

Act  of  March  2,  1893,  as  amended  April  1,  1896,  237; 
Act  of  March  2,  1903,  239; 
Act  of  April  14,  1910,  240; 

Sundry  Civil  Act  of  June  28,  1902,  Reference  to,  243; 
Sundry  Civil  Act  of  March  4,  1911,  Excerpt  from,  243. 
Orders  of  the  Interstate  Commerce  Commission: 

of  June  6,    1910,    In   re    Minimum    Percentage    of    Power 

Brakes,  244; 
of  October  10,  1910,  In  re  Standard  Height  of  Drawbars,  244, 
Administrativia.  Ruling  joj  „tte . Interstate   Commerce   Commia«» 
sion,  No.  67,  May  4,  1908,  Handholds-Passenger  Cars,  245. 


VI  TABLE  OF  CONTENTS. 


Appendix — Continued. 

THE  HOURS  OF  SERVICE  ACT,  246: 
Act  o£  March  4,  1907,  246; 

Act  to  regulate  commerce,  Excerpt  from  Section  20,  248. 
Orders  of  the  Interstate  Commerce  Commission: 

of  June  28, 1911,  In  re  Method  and  Form  of  Monthly  Reports 
of  Hours  of  Service  of  Employees  on  railroads  subject  to  the 
Act  of  March  4,  1907,  249; 
of  April  8,  1912,  In  re  Alteration  in  the  Method  and  Form 
of  Monthly  Reports  of  Hours  of  Service  of  Employees  on 
railroads  subject  to  the  Act  of  March  4,  1907,  249. 
Administrative  Rulings  of  the  Interstate  Commerce  Commission: 
No.  56,  April  7,  1908,  Street  Railways,  252; 
No.  74,  May  5,  1908,  Deadheading,  252; 
No.  88,  June  26,  1908,  Provisos  in  Sections  2  and  3,  252; 
No.  108,  November  10,  1908,  Ferry  Employees,  253; 
No.  275,  April  4,  1910,  Train  Baggagemen,  253; 
No.    287,  March   16,   1908,   General  Interpretation  of    the 

Hours  of  Service  Act,  260; 
No.  342,  February  12,  1912,  Use  by  Trainmen  of  the  Tele- 
graph or  Telephone,  263. 
THE  ASH  PAN  ACT,  264. 
INDEX,  267. 


TABLES    OF   CASES. 

I.  CASES  UNDER  THE  FEDERAL  SAFETY  APPLIANCE  ACTS,  WITH 
OTHER  CASES  IN  WHICH  THE  ACTS  HAVE  BEEN  CONSTRUED. 

A. — Penal  Actions. 

Page. 
Atchison,  T.  &  S.  F.  Ry.  Co.  v.  U.  S.  (172  Fed.,  1021),  Per  Curiam  [CCA-7]. .  11 

Atchison,  T.  &  S.  F.  Ry.  Co.  v.  U.  S.  (198  Fed.,  637),  Baker,  C.  J.  [CCA-7]. .  53,  54,  89 
Atchison,  T.  &  S.  F.  Ry.  Co.  v.  U.  S.  (172  Fed.,  194),  Grosscup,  C.  J.  [CCA-7].  20-21 
Atchison,  T.  &  S.  F.  Ry.  Co.,  U.  S.  •?;.  (unreported),  Wellborn,  D.  J.  [DC]. .  13, 15 
Atchison,  T.  &  S.  F.  Ry.  Co.,  U.  S.  v.  (unreported),  Sloan,  D.  J.  [DC] ....  15, 

35, 44,  63,  69,  75,  87,  95,  201,  204,  206 
Atchison,  T.  &  S.  F.  Ry.  Co.,  U.  S.  v.  (unreported),  Landis,  D.  J.  [DC] ..  20,  206, 208 
Atchison,  T.  &  S.  F.  Ry.  Co.,  U.  S.  v.  (167  Fed.,  696),  De  Haven,  D.  J.  [DC]. .  11, 

63,  69,  75,  80,  94, 95, 97,  202 
Atchison,  T.  &  S.  F.  Ry.  Co.,  U.  S.  v.  (150  Fed.,  442),  Lewis,  D.  J.  [DC] 

[reversed  by  CCA-8,  163  Fed.,  517] 7,15 

Atchison,  T.  &  S.  F.  Ry.  Co.,  U.  S.  v.  (163  Fed.,  517),  Van  Devanter,  C.J. 

[CCA-8]  [revemng  DC,  150  Fed.,  442] 11, 13, 19,  24 

Atlantic  Coast  Line  R.  Co.  v.  U.  S.  (168  Fed.,  175),  Pritchard,  C.  J.  [CCA-4] 

[affirming  DC,  153  Fed.,  918] 7, 10, 11, 20, 24, 195,  213, 222 

Atlantic  Coast  Line  R.  Co.,  U.  S.  v.  (182  Fed.,  284),  Speer,  D.  J.  [DC] 20,  215 

Atlantic  Coast  Line  R.  Co.  and  Southern  Ry.  Co.,  U.  S.  v.  (unreported), 

Brawley,  D.  J.  [DC] 12,13,15,20,37,39,45,181,184,204 

Atlantic  Coast  Line  R.  Co.,  U.  S.  v.  (214  Fed.,  498),  Call,  D.  J.  [DC] 8, 50, 55 

Atlantic  Coast  Line  R.  Co.,  U.  S.  v.  (153  Fed.,  918),  Pumell,  D.  J.  [DC] 

[affirmed  by  CCA-4,  168  Fed.,  175] 10,21,24,197,214,222 

Baltimore  &  0.  R.  Co.,  U.  S.  v.  (26  App.  D.  C,  581),  McComas,  Justice •         218 

Baltimore  &  O.  R.  Co.,  U.  S.  v.  (184  Fed.,  94),  McDowell,  D.  J.  [DC] . .  47,  84, 85, 194 

Baltimore  &  O.  R.  Co.,  U.  S.  v.  (unreported),  Dayton,  D.  J.  [DC] 10, 

12, 13,  20, 46, 47,  63,  85, 95, 96,  201,  202,  207,  208 

Baltimore  &  O.  R.  Co.,  U.  S.  v.  (unreported),  Sater,  D.  J.  [DC] 12, 

14,  20,  37,  75, 179,  202,  206,  207 
Baltimore  &  O.  R.  Co.  and  Toledo  Terminal  R.  Co.,  U.  S.  v.  (unreported), 

Cochran,  D.J.  [DC] 12, 14,  20,  37,  39, 47,  74,  75,  80,  85,  96,  201, 202, 204, 206 

Baltimore  &  O.  R.  Co.,  U.  S.  v.  (unreported),  Anderson,  D.  J.  [DC] 20,  77 

Baltimore  &  O.  R.  Co.,  U.  S.  v.  (170  Fed.,  456),  Orr,  D.  J.  [DC] 11, 

13, 15, 19,  37, 40,  69, 195,  204,  207,  225 

Baltimore  &  0.  R.  Co.,  U.  S.  v.  (176  Fed.,  114),  Orr,  D.  J.  [DC] 20,  66, 202 

Baltimore  &  0.  R.  Co.,  U.  S.  v.  (185  Fed.,  486),  Buffington,  C.  J.  [CCA-3]..  217 

Belt  Ry.  of  Chicago,  U.  S.  v,  (unreported),  Landis,  D.  J.  [DC]  [affirmed  by 

CCA-7,  168  Fed.,  542] 32,49,59,181 

Belt  Ry.  of  Chicago  v,  U.  S.  (168  Fed.,  542),  Baker,  C.  J.  [CCA-7]  [affirming 

DC,  unreported] 31, 32, 33, 48, 53, 59, 180 

Boston  &  M.  R.  Co.,  U.  S.  v.  (168  Fed.,  148),  Dodge,  D.  J.  [DC] 10, 

19,  38,  74,  83,  85,  202,  203 


vm  TABLES  OF  CASES. 


Page. 

Central  of  Georgia  Ry.  Co.,  U.  S.  v.  (157  Fed.,  893),  Hundley,  D.  J.  [DC]. .  7, 

36,  62,  68,  69,  73, 179, 181, 192,  201,  202 

Central  Vermont  Ry.  Co.  v.  U.  S.  (205  Fed.,  40),  Dodge,  C.  J.  [CCA-1].. . .  46,  72,  217 

Chesapeake  &  0.  Ry.  Co.,  U.  S.  v.  (unreported),  Keller,  D.  J.  [DC] 20, 

37,  39, 44,  66,  69,  73,  202 

Chesapeake  &  O.  Ry.  Co.,  U.  S.  v.  (213  Fed.,  748),  Pritchard,  C.  J.  [CCA-4]      49,  98 

Chicago  &  N.  W.  Ry.  Co.,  U.  S.  v.  (157  Fed.,  616),  Hunger,  D.  J.  [DC]  [re- 
versed by  CCA-8,  168  Fed.,  236] 8, 39, 43, 44,  45, 46, 47,  84, 184, 195, 197 

Chicago  &  N.  W.  Ry.  Co.  v.  U.  S.  (168  Fed.,  236),  Amidon,  D.  J.  [CCA-8] 

[reversing  DC,  157  Fed.,  616] 8,  39, 40, 44, 45, 93, 182 

Chicago,  B.  &  Q.  Ry.  Co.,  U.  S.  v,  (156  Fed.,  180),  Munger,  D.  J.  [DC]  [af- 
firmed by  CCA-8,  170  Fed.,  656] 13, 14, 192 

Chicago,  B.  &  Q.  Ry.  Co.  v.  U.  S.  (170  Fed.,  556),  Adams,  C.  J.  [CCA-8] 
[affirming  DC,  156  Fed.,  180] 11, 13, 14, 15, 20,  21 

Chicago,  B.  &  Q.  Ry.  Co.  v.  U.  S.  (220  U.  S.,  559),  Harlan,  Justice  [SC]  [af- 
firming CCA-8, 170  Fed.,  556] 11,12,13,19,24,108,112,114 

Chicago,  B.  &  Q.  Ry.  Co.  v.  U.  S.  (211  Fed.,  12),  Amidon,  D.  J.  [CCA-8] . .  27, 

50  61  73  99  100  203  229 

Chicago  Great  Western  Ry.  Co.,  U.  S.  v.  (162  Fed.,  775),  Reed,  D.  J.  [DC]. . .'       '    7, 

8, 14, 19,  26,  38,  39, 48,  69,  94,  95, 179, 180,  201,  204,  205 

Chicago,  M.  &  P.  S.  Ry.  Co.,  U.  S.  v.  (unreported),  Dietrich,  D.  J.  [DC]  [af- 
firmed by  CCA-9,  196  Fed.,  882] 19, 71, 88 

Chicago,  M.  &  P.  S.  Ry.  Co.  v.  U.  S.  (196  Fed.,  882),  Gilbert,  C.  J.  [CCA-9] 

[aflirming  DC,  unreported] 18, 19, 46, 47,  71,  79,  87, 88, 89 

Chicago,  M.  &  St.  P.  Ry.  Co.,  U.  S.  v.  (149  Fed.,  486),  McPherson,  D.  J.  [DC] 

[affirmed  by  CCA-8, 165  Fed. ,  423] 7, 14, 

21, 27, 28, 45, 46,  68, 73,  75, 97, 184, 186, 196, 197 

Chicago,  M.  &  St.  P.  Ry.  Co.  v.  U.  S.  (165  Fed.,  423),  Hook,  C.  J.  [CCA-«] 
[affirmingDC,149Fed.,486] 11,13,37,40,44,46,47,48,50,95,97 

Chicago,  P.  &  St.  L.  Ry.  Co.  etal.,  U.  S.  v.  (143  Fed.,  353),  Sanborn,  D.  J. 
[DC] 21,217 

Chicago,  R.  I.  &  P.  Ry.  Co.,  U.  S.  v.  (173  Fed.,  684),  McPherson,  D.  J.  [DC].        7, 20, 

21.26,192,197 

Chicago,'  St.  P.  M.  &  0.  Ry.  Co.  v.  U.  S.  (162  Fed.,  835),  Adams,  C.  J.  [CCA-8] 
[aflirming  DC,  151  Fed.,  84) 112, 117 

Cincinnati,  H  &  D.  R.  Co.,  U.  S.  v.  (unreported),  Tayler,  D.  J.  [DC] 17 

Colorado  &  N.  W.  R.  Co.,  U.  S.  v.  (157  Fed.,  321),  Sanborn,  C.  J.  [CCA-8] 
[certiorari  denied  (209  U.  S.,  544)] 22, 30, 33, 179, 181, 184, 186, 187, 193, 194, 195 

Colorado  &  N.  W.  R.  Co.,  U.  S.  v.  (157  Fed.,  342),  Sanborn,  C.  J.  [CCA-8]. .  22,  33, 183 

Colorado  Midland  Ry.  Co.,  U.  S.  v.  (202  Fed.,  732),  Sanborn,  C.  J  [CCA-8]. .     98, 101 

Denver  &  R.  G.  R.  Co.,  U.  S.  v.  (163 Fed.,  519),  Van  Devanter,  C.  J.  [CCA-8].      11, 13, 

18, 19,  62,  69,  71,  72,  76,  79,  87,  217 
Detroit,  T.  &  I.  Ry.  Co.  v.  State  of  Ohio  (91  N.  E.,  869),  Summers,  C.  J.  [Ohio].  187, 189 

Elgin  J.  &  E.  Ry.  Co.  v.V.S.  (168  Fed.,  1),  Baker,  C.  J.  [CCA-7] 10, 30, 

39,  40,  42,  44,  50, 179, 185, 187,  209,  217 

El  Paso  &  S.  W.  R.  Co.,  U.  S.  v.  (unreported),  Doan,  D.  J.  [DC] 35,73 

El  Paso  &  S.  W.  R.  Co.,  U.  S.  v.  (unreported),  Maxey,  D.  J.  [DC] 14, 15 

Erie  R.  Co.  v.  U.  S.  (197  Fed.,  287),  Buffington,  C.  J.  [CCA-3]. .  7,  39,  49,  50,  56,  59,  62 
Erie  R.  Co.,  U.  S.  v.  (166  Fed.,  352),  Lanning,  D.  J.  [DC]. .  11, 24,  30,  37,  40,  42, 180, 195 
Erie  R.  Co.,  U.  S.  v.  (212  Fed.,  853),  Buffington,  C.  J.  [CCA-3] 60,  67 


SAFETY  APPLIANCE  ACTS.  ix 


Page. 
Galveston,  H.  &  S.  A.  Ry.  Co.  v.  U,  S.  (183  Fed.,  579),  Per  Curiam  [CCA-5].  12 

Galveston,  H.  &  S.  A.  Ry.  Co.  v.  U.  S.  (199  Fed.,  891),  Pardee,  C.  J.  [CCA-5].      12, 27, 

94,  97,  98, 100, 101 
Geddes,  U.  S.  v.  (131  Fed.,  452),  Richards,  C.  J.   [CCA-6]  [affirming  DC, 

180  Fed.,  480] 22,29,33,180 

Geddes,  U.  S.  v.  (180  Fed.,  480),  Thompson,  D.  J.  [DC]  [affirmed  by  CCA-6, 

131  Fed.,  452] 22,33 

Grand  Trunk  Ry.  Co.  of  Can.,  U.  S.  v.  (203  Fed.,  775),  Hazel,  D.  J.  [DC].  16, 38, 54, 62 
Great  Northern  Ry.  Co.,  U.  S.  v.  (145  Fed.,  438),  Whitson,  D.  J.  [DC]. .  43, 48, 185, 190 
Great  Northern  Ry.  Co.,  U.  S.  v.  (150  Fed.,  229),  Whitson,  D.  J.  [DC]. .  11, 14, 21,  80 

Illinois  Central  R.  Co.,  U.  S.  v.  (156  Fed.,  182),  Evans,  D.  J.  [DC]  [reversed 

by  CCA-6, 170  Fed.,  542] 12, 14, 15, 17, 20,  76, 81, 196, 197 

Illinois  Central  R.  Co.,  U.  S.  v.  (170  Fed.,  542),  Severens,  C.  J.  [CCA-6] 

[reversing  DC,  156  Fed.,  182;  certiorari  denied,  214  U.  S.,  520] 12, 14, 

19,20,21,76,217 
Illinois  Central  R.  Co.,  U.  S.  v.  (177  Fed.,  801),  Knappen,  C.  J.  [CCA-6]. ...    12,  71, 

76,  78, 192, 214 

Illinois  Central  R.  Co.,  U.  S.  v.  (166  Fed.,  997),  Wright,  D.  J  [DC] 40,201 

Indiana  Harbor  R.  Co.,  U.  S.  v.  (157  Fed.,  565),  Landis,  D.  J.  [DC] 14,  76 

International  &  Great  Northern  R.  Co.,  U.  S.  v.  (174  Fed.,  638),  Shelby,  C.  J. 
[CCA-6] 36,39,44,48 

Lehigh  Valley  R.  Co.,  U.  S.  v.  (162  Fed.,  410),  McPherson,  D.J.  [DC]....  11,97 
Lehigh  Valley  R.  Co.,  U.  S.  v.  (unreported)  McPherson,  D.  J  [DC]. .  7, 15, 20, 69, 201 
Louisville  &  N.  R.  Co.  v.  U.  S.  (186  Fed.,  280),  Severens,  C.  J.  [CCA-6]..     30,37, 

40,207,208,214 

Louisville  &  N.  R.  Co.,  U.  S.  v.  (156  Fed.,  195),  Evans,  D.  J.  [DC] 95 

Louisville  &  N.  R.  Co.,  U.  S.  v,  (167  Fed.,  306),  Severens,  C.  J.  [CCA-6] 

[affirming  DC,  156  Fed . ,  193] 21 

Louisville  &  N.  R.  Co.,  U.  S.  v.  (156  Fed.,  193),  Evans,  D.  J.  [DC]  [affirmed 

by  CCA-6,  167  Fed.,  306] 95 

Louisville  &  N.  R.  Co.,  U.  S.  v.  (162  Fed.,  185),  Toulmin,  D.  J.  [DC]..  13,14,19, 

44,  69,  71,  75,  201 

Montpelier  &  W.  R.  R.  Co.,  U.  S.  v.  (175  P^ed.,  874),  Martin,  D.  J.  [DC].  71, 82, 201, 217 

Nevada  County  N.  G.  R.  Co.,  U.  S.  v.  (167  Fed.,  695),  De  Haven,  D.  J.  [DC].     68, 69, 

74,  75, 201 
New  York  Central  &  H.  R.  R.  Co.,  U.  S.  -y.  (205  Fed.,  428),  Hazel,  D.  J.  [DC].  62 

Norfolk  &  W.  Ry.  Co.,  U.  S.  v.  (184  Fed.,  99),  McDowell,  D.  J.  [DC]....  47,85 
Norfolk  &  W.  Ry.  Co.  v.  U.  S.  (177  Fed.,  623),  Dayton,  D.  J.  [CCA-4]..     11,18, 

27, 37, 40, 47,  73,  81,  82, 205,  206, 207, 217 
Norfolk  &  W.  Ry.  Co.  v.  U.  S.  (191  Fed.,  302),  Pritchard,  C.  J.  [CCA-4].  12, 203,  210, 216 
Northern  Pacific  Ry.  Co.,  U.  S.  v.  (unreported),  Cushman,  D.  J.  [DC]..     12,16, 

20, 26, 42, 46,  62,  69,  72,  73,  83,  90,  91,  92,  99, 100, 195, 202 
Northern  Pacific  Terminal  Co.,  U.  S.  v.  (144  Fed.,  861),  Wolverton,  D.  J. 
.   [BC] 32,36,43,44,76 

Oregon  Short  Line  R.  Co.,  U.  S.  v.  (180  Fed.,  483),  Dietrich,  D.  J.  pC]..        7, 13 

Pacific  Coast  Ry.  Co.,  U.  S.  v.  (173  Fed.,  453),  Wellborn,  D.  J.  [DC]  [affirmed 

by  CCA-9,  173  Fed.,  448] ^184 


TABLES  OF  CASES. 


I'age. 

Pacific  Coast  Ry.  Co.  v.  U.  S.  (173  Fed.,  448),  Gilbert,  C.  J.  [CCA-9J  [allinii- 

ing  DC,  173  Fed.,  453] 49, 181 

Pennsylvania  II.  Co.,  U.  S.  v.  (162  Fed.,  408),  McPherson,  D.  J.  [DC]....  11 

Pennsylvania  R.  Co.,  U.  S.  v.  (unreported),  Orr,  D.  J.  [DC] 10, 12,  69 

Pennsylvania  R.  Co.,  U.  S.  v.  (unreported)  McPherson,  D.  J.  [DC] 7,13, 

15,  20,  26,  27,  69,  75,  81, 201 

Pere  Marquette  R.  Co.,  U.  S.  v.  (211  Fed.,  220),  Sessions,  D.  J.  [DC] 12, 16, 

27,  39,  51,  55, 193 

Philadelphia  &  R.  Ry.  Co.  v.  U.  S.  (191  Fed.,  1),  Gray,  C.  J.  [CCA-3] 16, 34 

Philadelphia  &  R.  Ry.  Co.,  U.  S.  v.  (162  Fed.,  403),  McPherson,  D.  J.  [DC]. .  11 

Philadelphia  &  R.  Ry.  Co.,  U.  S.  v.  (162  Fed.,  405),  McPherson,  D.  J.  [DC]  11,  97 
Philadelphia  &  R.  Ry.  Co.,  U.  S.  v.  (unreported),  McPherson,  D.  J.  [DC]. 13,  69,  75,  201 
Philadelphia  &  R.  Ry.  Co.,  U.  S.  v.  (160  Fed.,  696),  McPherson,  D.  J.  [DC]  7, 

13,  69,  75,  81,  201 
Pittsburgh,  C.  C.  &  St.  L.  Ry.  Co.,  U.  S.  v.  (143  Fed.,  360),  Thompson,  D.  J. 

[DC] 52 

Raihoad  Com.  of  Ind.,  Southern  Ry.  Co.  v,  (100  N.  E.,  337),  Myers,  J.  [Indi- 
ana]   37,42,84,187,189 

Rio  Grande  Western  Ry.  Co.,  U.  S.  v.  (174  Fed.,  399),  Sanborn,  C.  J.  [CCA-8].     75, 93 

St.  Louis  I.  M.  &  S.  Ry.  Co.,  U.  S.  v.  (164  Fed.,  516),  McCall,  D.  J.  [DC]. ...  37, 

43, 44,  73,  95,  97 
St.  Louie  S.  W.  Ry.  Co.  v.  U.  S.  (183  Fed.,  770),  Per  Curiam  [CCA-5]. ...  20,  25,  214 
St.  Louis  S.  W.  Ry.  Co.  of  Texas,  U.  S.  v.  (184  Fed.,  28),  Shelby,  C.  J.  [CCA-5]  7, 

20,  21,  26,  38,  46, 119, 193 

Southern  Pacific  Co.,  U.  S.  v.  (167  Fed.,  699),  De  Havi^n,  D.  J.  [DC]. 11, 

13, 14, 17,  27,  39, 46,  62,  63,  69,  73,  77,  94,  96,  97,  201,  203,  206 

Southern  Pacific  Co.,  U.  S.  v.  (169  Fed.,  407),  Adams,  C.  J.  [CCA-8] 11, 

13, 15, 19,  39,  45,  92, 93 

Southern  Pacific  Co.,  U.  S.  v.  (154  Fed.,  897),  Woh  i^rton,  D.  J.  [D.C] 11, 

13, 14, 15,  63,  94,  97 

Southern  Pacific  Co.,  U.  S.  v.  (unreported),  Farriiurton,  D.  J.  [DC] 12, 

16,  20,  39,  46, 47,  48.  52,  64,  69,  75,  96,  97, 179,  201,  202,  205 
Southern  Ry.  Co.  v.  Raih-oad  Com.  of  Ind.  (100  N.  E.,  837),  Myers,  J.  [Indi- 
ana]  37,  42,  84, 187, 189 

Southern  Ry.  Co.  v.  U.  S.  (222  U.  S.,  20),  Van  Devanter,  Justice  [SC]  [affirming 

DC,  164  Fed.,  347] " 8,  9,  27,  34,  41,  50,  58, 129, 180, 185, 190, 193 

Southern  Ry.  Co.,  U.  S.  v.  (135  Fed.,  122),  Humphrey,  D.  J.  [DC] 7, 

13,  21,  26,  75, 192, 196 

Southern  Ry.  Co.,  U.  S.  v.  (170  Fed.,  1014),  Boyd,  D.  J.  [DC] 7, 

11, 13,  20,  37,  40,  44,  46, 47,  69,  75, 192,  201,  202 
Southern  R> .  Co.,  U.  S.  v.  (164  Fed.,  347),  Hundley,  D.  J.  [DC]  [affirmed  by 

SO,  222  U.  S.,  20] 10,  24,  30,  42,  49, 187, 190, 191 

Spokane  &  I.  E.  R.  Co.,  U.  S.  v.  (unreported),  Rudkin,  D.  J.  [DC] 209 

Spokane  &  I.  E.  R.  Co.  v,  U.  S.  (210  Fed.,  243),  Ross,  C.  J.  [CCA-9]  [affirming 

DC,  206  Fed.,  988] 33,  209 

Spokane  &  I.  E.  R.  Co.,  U.  S.  v.  (206  Fed.,  988)  Rudkin,  D.  J.  [DC]  [affirmed 

by  CCA-9,  210  Fed.,  243] 34,37 

State  of  Ohio,  Detroit,  T.  &  I.  Ry.  Co.  v.  (91 N.  E.,  869),  Summers  Ch.  J.  [Ohio].  187, 189 

Terminal  R.  Assn.  of  St.  L.,  U.  S.  v.  (unreported),  Dyer,  D.  J.  [DC] 20,  81 

Trinity  &  B.  V.  Ry.  Co.,  U.  S.  v.  (211  Fed.,  448),  Call,  D.  J.  [CCA-5].  12, 14,  98,  212,  215 


SAFETY  APPLIANCE  ACTS. 


Page. 
Union  Stock  Yarda  Co.  of  Omaha  v.  U.  S.  (169  Fed.,  404),  Van  Devanter,  C.  J. 

[CCA-8]  [affirming  DC,  161  Fed.,  919] 29, 50 

Union  St<x)k  Yards  Co.  of  Omaha,  U.  S.  v.  (161  Fed.,  919),  Munger,  D.J. 

[DC]  [affirmed  by  CCA-8,  169  Fed.,  404] 29, 30 

U.  S.  V.  Atchison,  T.  &  S.  F.  Ry.  Co.  (unreported).  Wellborn,  D.  J.  pC]. . . .      13, 15 

U.  S.  V.  Atchison,  T.  &  8.  F.  Ry.  Co.  (unreported),  Sloan,  D.  J.  [DC] 15, 

as,  44,  63,  69,  75,  87, 95,  201,  204,  206 
U.  S.  V.  Atchison,  T.  &  S.  F.  Ry.  Co.  (unreported),  Landis,  D.  J.  pC]. . .  20,  206,  208 
U.  8.  V.  Atchison,  T.  &  S.  F.  Ry.  Co.  (167  Fed.,  696),  De  Haven,  D.  J.  [DC]. .  11, 

63,  69,  75,  80,  94,  95,  97,  202 
U.  S.  V.  Atchison,  T.  &  S.  F.  Ry.  Co.  (150  Fed.,  442),  Le^v-is,  D.  J.  [DC]. ..  7, 15 
U.  S.  V.  Atchison,  T.  &  S.  F.  Ry.  Co.  (163  Fed.,  517),  Van  Devanter  C.  J. 

[CCA-8]  [reversing  DC,  150  Fed.,  442] 11,13,19,24 

U.S.,  Atchison,  T.  &  S.  F.  Ry.  Co.  v.  (172  Fed.,  194),  Groeecup,  C.  J.  [CCA-7]      20,  21 
U.  S.,  Atchison,  T.  &  S.  F.  Ry.  Co.  v.  (172  Fed.,  1021),  Per  Curiam  [CCA-7].  11 

U.  S..  Atchison,  T.  &  S.  F.  Ry.  Co.  v.  (198  Fed.,  637),  Baker,  C.J.  [CCA-7].  63,64,89 

U.  S.  r.  Atlantic  Coast  Line  R.  Co.  (unreported),  Brawley,  D.  J.  pC] 12, 

13, 15,  20,  37,  39, 45, 181, 184,  204 

U.  S.  V.  Atlantic  Coast  J^ne  R.  Co.  (153  Fed.,  918),  Pumell,  D.  J.  pC] 10, 

21,  24, 197,  214, 222 
U.  S.,  Atlantic  Coast  Line  R.  Co.  v.  (168  Fed.,  175),  Pritchard,  C.  J.  [CCA-4] 

[affirming  DC,  153  Fed.,  918] 7,10,11,20,24,195,213,222 

U.  S.  V.  Atlantic  Coast  Line  R.  Co.  (182  Fed.,  284),  Speer,  D.  J.  [DC] 20,215 

U.  S.  V.  Atlantic  Coast  Line  R.  Co.  (214  Fed.,  498),  Call,  D.  J.  [DC] 8, 50, 55 

U.  S.  V.  Baltimore  &  0.  R.  Co.  (26  App.  D.  C,  581),  McComaa,  Justice 218 

U.  S.  V.  Baltimore  &  O.  R.  Co.  (unreported),  Daj-ton,  D.  J.  [DC] 10, 

12, 13,  20, 46, 47,  63,  85,  95,  96, 201, 202, 207, 208 

U.  S.  V.  Baltimore  &  O.  R.  Co.  (unreported),  Sater,  D.  J.  [DC] 12, 

14,  20, 37,  75, 179,  202,  206, 207 

U.  8.  V.  Baltimore  &  O.  R.  Co.  (unreported),  Cochran,  D.  J.  pC] 12, 

14, 20, 37, 39, 47,  74,  75,  80, 85,  96,  201,  202,  204, 206 

U.  S.  V.  Baltimore  A  O.  R.  Co.  (unreported),  Anderson,  D.  J.  pC] 20, 77 

U.  8.  V.  Baltimore  &  O.  R.  Co.  (170  Fed.,  456),  Orr,  D.  J.  [DC] 11, 

13, 15, 19, 37, 40, 69, 195, 204, 207, 225 

U.  8.  V.  Baltimore  &  O.  R.  Co.  (176  Fed.,  114),  Orr,  D.  J.  [DC] 20,66,202 

U.  S.  V.  Baltimore  &  O.  R.  Co.  (185  Fed.,  486),  Buffington,  C.  J.  [CCA-3]. .  -  217 

U.  S.  V.  Baltimore  &  O.  R.  Co.  (184  Fed.,  94),  McDoweU,  D.  J.  [DC]..  47,84,85,194 
V.S.v.  Belt  Ry.  Co.  of  Chicago  (unreported),  Landis,  D.  J.  [DC]  [affirmed 

by  CCA-7,  168  Fed.,  542] 32,49,59,181 

U.  S.,  Belt  Ry.  Co.  of  Chicago  v.  (168  Fed.,  542),  Baker,  C.  J.  [CCA-7] 

[affirming  DC,  unreported] : 31,32,33,48,53,59,180 

U.  8.  V.  Boston  &  M.  R.  Co.  (168  Fed.,  148),  Dodge,  D.  J.  [DC] 10, 

19,38,74,83,85,202,203 

U.  S.  V.  Central  of  Ga.  Ry.  Co.  (157  Fed.,  893),  Hundley,  D.  J.  [DC] 7, 

36,  62, 68, 69, 73, 179, 181. 192, 201, 202 
U.  8.,  Central  Vermont  Ry.  Co.  v.  (205  Fed.,  40),  Dodge,  C.  J.  [CCA-l]...  46,72,217 

U.  8.  V.  Chesapeake  &  O.  Ry.  Co.  (unreported),  Keller,  D.  J.  [DC] 20, 

37,39,44,66,69,73,202 
U.  8.  V.  Chesapeake  &  0.  Ry.  Co.  (213  Fed.,  748),  Pritchard,  C.  J.  [CCA-4]. .      49, 98 
U.  8.  V,  Chicago  &  N.  W.  Ry.  Co.  (157  Fed.,  616),  Munger,  D.  J.  pC]  [re- 
versed by  CCA-8,  168  Fed.,  236] 8,39,43,44,45,46,47,84,184,195,197 

U.  8.,  Chicago  &  N.  W.  Ry.  Co.  v.  (168  Fed.,  236),  Amidon,  D.  J.  [CCA-^] 
[reversing  DC,  157  Fed.,  616] 8,39.40.44,4-^93,182 


xn  TABLES  OF  CASES. 

Page. 
U.  S.  V.  Chicago,  B.  &  Q.  Ry.  Co.  (156  Fed.,  180),  Hunger,  D.  J.  [DC]  [affirmed 

by  CCA-8,  170  Fed.,  556] 13, 14, 192 

U.  S.,  Chicago,  B.  &  Q.  Ry.  Co.  v.  (170  Fed.,  556),  Adams,  C.  J.  [CCA-8] 

[affirming  DC,  156  Fed.,  180] 11, 13, 14, 15,  20, 21 

U.  S.,  Chicago,  B.  &  Q.  Ry.  Co.  v.  (220  U.  S.,  559),  Harlan,  Justice  [SC] 

[affirming  CCA-8,  170  Fed.,  556] 11, 12, 13, 19, 24, 108, 112, 114 

U.  S.,  Chicago,  B.  &  Q.  Ry.  Co.  v.  (211  Fed.,  12),  Amidon,  D.  J.  [CCA-8]. .  27, 

50,61,73,99,100,203,229 

U.  S.  V.  Chicago  G.  W.  Ry.  Co.  (162  Fed.,  775),  Reed,  D.  J.  [DC] 7, 

8, 14, 19,  26,  38,  39, 48,  69,  94,  95, 179, 180, 201,  204, 205 
U.  S.  V.  Chicago,  M.  &  P.  S.  Ry.  Co.  (unreported),  Dietrich,  D.  J.  [DC] 

[affirmed  by  CCA-9,  196  Fed.,  882] 19,71,88 

U.  S.,  Chicago,  M.  &  P.  S.  Ry.  Co.  v.  (196  Fed.,  882),  Gilbert,  C.  J.  [CCA-9] 

[affirming  DC,  unreported] 18, 19,46, 47,  71,  79,  87,  88, 89 

U.  S.  V.  Chicago,  M.  &  St.  P.  Ry.  Co.  (149  Fed.,  486),  McPherson,  D.  J. 

[DC]  [affirmed  by  CCA-8,  165  Fed.,  423] 7, 

14, 21, 27, 28, 45, 46,  68,  73, 75,  97, 184, 186, 196, 197 
U.  S.,  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  (165  Fed.,  423),  Hook,  C.  J.  [CCA-8] 

[affirming  DC,  149  Fed.,  486] 11, 13, 37, 40, 44, 46, 47, 48,  50,  95,  97 

U.  S.  V.  Chicago,  P.  &  St.  L.  Ry.  Co.  et  al.  (143  Fed.,  353),  Sanborn,  D.  J. 

[DC] 21,217 

U.  S.  r.  Chicago,  R.  I.  &  P.  Ry.  Co.  (173  Fed.,  684),  McPherson,  D.  J.  [DC]. .  7, 

20,21,26,192,197 
U.  S.,  Chicago,  St.  P.,  M.  &  O.  Ry.  Co.  v.  (162  Fed.,  835),  Adams,  C.  J.  [CCA-8] 

[affirming  DC,  151  Fed.,  84] 112, 117 

TJ.  S.  V.  Cincinnati,  H.  &  D.  R.  Co.  (unreported),  Tayler,  D.  J.  [DC] 17 

U.  S.  V.  Colorado  &  N.  W.  R.  Co.  (157  Fed.,  321),  SSnborn,  C.  J.  [CCA-8] 

[certiorari  denied,  209  U.  S.,  544] 22, 30, 33, 179, 181, 184, 186, 187, 193, 194, 195 

U.  S.  V.  Colorado  &  N.  W.  R.  Co.  (157  Fed.,  342),  Sanborn,  C.  J.  [CCA-8]. .  22, 33, 183 
U.  S.  V.  Colorado  Midland  Ry.  Co.  (202  Fed.,  732),  Sanborn,  C.  J.  [CCA-8]. . . .  98, 101 
U.  S.  V.  Denver  &  R.  G.  R.  Co.  (163  Fed.,  519),  Van  Devanter,  C.  J.  [CCA-8].  11, 

13, 18, 19,  62,  69,  71,  72,  76,  79,  87,  217 

U.  S.  V.  El  Paso  &  S.  W.  R.  Co.  (unreported),  Doan,  D.  J.  [DC] 35,  73 

U.  S.  V.  El  Paso  &  S.  W.  R.  Co.  et  al.  (unreported),  Maxey,  D.  J.  [DC] 14, 15 

U.  S.,  Elgin,  J.  &  E.  Ry.  Co.  v.  (168  Fed.,  1),  Baker,  C.  J.  [CCA-7] 10, 

30,  39,  40,  42,  44,  50, 179, 185, 187,  209,  217 
U.  S.  V.  Erie  R.  Co.  (166  Fed.,  352),  Lanning,  D.  J.  [DC].  11,  24,  30,  37, 40, 42, 180, 195 

U.  S.  V.  Erie  R.  Co.  (212  Fed.,  853),  Buffington,  C.  J.  [CCA-3] 60,  67 

U.  S.,  Erie  R.  Co.  v.  (197  Fed.,  287),  Buffington,  C.  J.  [CCA-3].  7,  39, 49,  50,  56,  59,  62 
U.  S.,  Galveston,  H.  &  S.  A.  Ry.  Co.  v.  (183  Fed.,  579),  Per  Curiam  [CCA-5]. .  12 

U.  S.,  Galveston,  H.  &  S.  A.  Ry.  Co.  v.  (199  Fed.,  891),  Pardee,  C.  J.  [CCA-5]. .  12, 

27,  94,  97,  98, 100, 101 
U.  S.  V.  Geddes  (131  Fed.,  452),  Richards,  C.  J.  [CCA-6]  [affirming  DC,  180 

Fed.,  480] 22,29,33,180 

V.  S.  V.  Geddes  (180  Fed.,  480),  Thompson,  D.  J.  [DC]  [affirmed  by  CCA-6, 

131  Fed.,  452] 22,33 

U.  S.  V.  Grand  Trunk  Ry.  Co.  of  Canada  (203  Fed.,  775),  Hazel,  D.  J.  [DC]. .  16, 

38,  54,  62 
U.  S.  V.  Great  Northern  Ry.  Co.  (145  Fed.,  438),  Whitson,  D.  J.  [DC]. .  43, 48, 185, 190 
U.  S.  V.  Great  Northern  Ry.  Co.  (150  Fed.,  229),  Whitson,  D.  J.  [DC]...  11, 14,21,  80 
U.  S.  V.  Illinois  Central  R.  Co.  (156  Fed.,  182),  Evans,  D.  J.  [DC]  [reversed 

by  CCA-6,  170  Fed.,  542] 12, 14, 15, 17,  20,  76,  81, 196, 197 


SAFETY  APPLIANCE  ACTS.  xin 


Page. 
U.  S.  V.  Illinois  Central  R.  Co.  (170  Fed.,  542),  Severens,  C.  J.  [CCA-0] 

[reversing  DC,  156  Fed.,  182,  certiorari  denied,  214  U.  S.,  520] 12, 

14, 19,  20,  21,  76,  21T 

U.  S.  V.  Illinois  Central  R.  Co.  (166  Fed.,  997),  Wright,  D.  J.  [DC] 40,  201 

U.  S.  V.  Illinois  Central  R.  Co.  (177  Fed.,  801),  Knappen,  C.  J.  [CCA-6] 12, 

71,  76,  78, 192,  214 

U.  S.  V.  Indiana  Harbor  R.  Co.  (157  Fed.,  565),  Landis,  D.  J.  [DC] 14,  76 

U.  S.  V.  International  &  G.  N.  R.  Co.  (174  Fed.,  638),  Shelby,  C.  J.  [CCA-5]. .  36, 

39,  44, 48 
U.  S.  V.  Lehigh  Valley  R.  Co.  (unreported),  McPherson,  D.  J.  [DC]. ...  7, 15,  20,  69,  201 

U.  S.  V.  Lehigh  Valley  R.  Co.  (162  Fed.,  410),  McPherson,  D.  J.  [DC] 11,  97 

U.  S.  V.  Louisville  &  N.  R.  Co.  (156  Fed.,  193),  Evans,  D.  J.  [DC]  [affirmed 

by  CCA-6,  167  Fed.,  306] 95 

U.  S.,  Louisville  &  N.  R.  Co.  v.  (186  Fed.,  280),  Severens,  C.  J.  [CCA-6]....  30, 

37,  40,  207,  208,  214 

U.  S.  V.  LouisviUe  &  N.  R.  Co.  (156  Fed.,  195),  Evans,  D.  J.  [DC] 96 

U.  S.  V.  Louisville  &  N.  R.  Co.  (167  Fed.,  306),  Severens,  C.  J.  [CCA-6] 

[affirming  DC,  156  Fed.,  193] 21 

U.  S.  V.  Louisville  &  N.  R.  Co.  (162  Fed.,  185),  Toulmin,  D.  J.  [DC] 13, 

14, 19, 44,  69,  71,  75,  201 
U.  S.  V.  MontpeUer  &  W.  R.  R.  Co.  (175  Fed.,  874),  Martin,  D.  J.  [DC]. .  71, 82, 201, 217 
U.  S.  V.  Nevada  County  N.  G.  R.  Co.  (167  Fed.,  695),  De  Haven,  D.  J.  [DC] . .  68. 

69,  74,  75,  201 
U.  S.  V.  New  York  Central  &  H.  R.  R.  Co.  (205  Fed.,  428),  Hazel,  D.  J.  [DC]. . .  62 

U.  S.  V.  Norfolk  &  W.  Ry.  Co.  (184  Fed.,  99),  McDoweU,  D.  J.  [DC] 47, 85 

U.  S.,  Norfolk  &  W.  Ry.  Co.  v.  (177  Fed.,  623),  Dayton,  D.  J.  [CCA-43 11, 

18,  27,  37,  40,  47,  73,  81,  82,  205,  206,  207,  217 
U.  S.,  Norfolk  &  W.  R.  Co.  v.  (191  Fed.,  302),  Pritchard,  C.  J.  [CCA-4] . .  12,  203,  210,  216 

U.  S.  V.  Northern  Pac.  Ry.  Co.  (unreported),  Cushman,  D.  J.  [DC] 12, 

16,  20,  26,  42,  46,  62,  69,  72,  73,  83,  90,  91,  92,  99, 100, 195,  202 
U.  S.  V.  Northern  Pacific  Terminal  Co.  (144  Fed.,  861),  Wolverton,  D.  J. 

[DO] 32,36,43,44,75 

U.  S.  V.  Oregon  Short  Line  R.  Co.  (180  Fed.,  483),  Dietrich,  D.  J.  [DC] 7, 13 

U.  S.  V.  Pacific  Coast  Ry.  Co.  (173  Fed.,  453),  Wellborn,  D.  J.  [DC]  [affirmed 

by  CCA-9,  173  Fed.,  448] 184 

U.  S.,  Pacific  Coast  Ry.  Co,  v.  (173  Fed.,  448),  Gilbert,  C.  J.  [CCA-9]  [affirm- 
ing DC,  173  Fed.,  453] 49,181 

U.  S.  V.  Pennsylvania  R.  Co.  (unreported),  McPherson,  D.  J.  [DC] 7, 

13, 15,  20,  26,  27,  69,  75,  81,  201 

U.  S.  V.  Pennsylvania  R.  Co.  (unreported),  Orr,  D.  J.  [DC] 10, 12,  69 

TJ.  S.  V.  Pennsylvania  R.  Co.  (162  Fed.,  408),  McPherson,  D.  J.  [DC] 11 

IT.  S.  V.  Pere  Marquette  R.  Co.  (211  Fed.,  220),  Sessions,  D.  J.  [DC] 12, 

16,  27,  39,  51,  55, 193 
U.  S.  v.  Philadelphia  &  R.  Ry.  Co.  (unreported),  McPherson,  D.  J.  [DC].  13,  69,  75,  201 
U.  S.  V.  Philadelphia  &  R.  Ry.  Co.  (162  Fed.,  403),  McPherson,  D.  J.  [DC]. .  11 

U.  S.  V.  Philadelphia  &  R.  Ry.  Co.  (162  Fed.,  405),  McPherson,  D.  J.  [DC]. .      11, 97 
U.  S.  V.  Philadelphia  &  R.  Ry.  Co.  (160  Fed.,  696),  McPherson,  D.  J.  [DC]. .  7, 

13,69,75,81,201 

U.  S.,  Philadelphia  &  R.  Ry.  Co.  v.  (191  Fed.,  1),  Gray,  C.  J.  [CCA-3] 16, 34 

U.  S.  V.  Pittsburgh,  C.  C.  &  St.  L.  Ry.  Co.  (143  Fed.,  360),  Thompson,  D.  J. 

[DC] 52 

U.  S.  V.  Rio  Grande  Western  Ry.  Co.  (174  Fed.,  399),  Sanborn,  C.  J.  [CCA-8]. .       75, 9S 


XIV  TABLES  OF  CASES. 


Page. 

U.  S.  V.  St.  Louis,  I.  M.  &  S.  Ry.  Co.  (154  Fed.,  516),  McCall,  D  J.  [DC] 37, 

43, 44,  73,  95,  97 
U.  S.  V.  St.  Louis  S.  W.  Ry.  Co.  of  Texas(184  Fed.,  28),  Shelby,  C.  J.  [CCA-5]..  7, 

20,  21,  26, 38, 46, 119, 193 

U  S.,  St.  Louis  S.  W.  Ry.  Co.  v.  (183  Fed.,  770),  Per  Curiam  [CCA-5] 20, 25,  214 

U.  S.  V.  Southern  Pacific  Co.  (unreported),  Farrington,  D.  J.  [DC] 12, 

16,  20, 39, 46,  47, 48, 52,  64,  69, 75,  76, 97, 179,  201,  202,  205 

U.  S.  V.  Southern  Pacific  Co.  (154  Fed.,  897),  Wolverton,  D.  J.  [DC] 11, 

13,14,15,63,94,97 

U.  S.  V.  Southern  Pacific  Co.  (167  Fed.,  699),  De  Haven,  D.  J.  [DC] 11, 

13, 14, 17,  27,  39, 46,  62,  63,  69,  73, 77, 94,  96, 97,  201,  203,  206 

U.  S.  V.  Southern  Pacific  Co.  (169  Fed.,  407),  Adams,  C.  J.  [CCA-8] 11, 

13, 15, 19, 39, 45, 92,  93 

U.  S.  V.  Southern  Ry.  Co.  (135  Fed.,  122),  Humphrey,  D.  J.  [DC] 7, 

13,  21,  26,  75, 192, 196 
U.  S.  V.  Southern  Ry.  Co.  (164  Fed.,  347),  Hundley,  D.  J.  [DC]  [affirmed  by 

SO,  222  U.  S.,  20] 10,24,30,42,49,187,190,191 

U.  S.,  Southern  Ry.  Co.  v.  (222  U.  S.,  20),  Van  Devanter,  Justice  [SC] 

[affirming  DC,  164  Fed.,  347] 8,9,27,34,41,50,58,129,180,185,190,193 

U.  S.  V.  Southern  Ry.  Co.  (170  Fed.,  1014),  Boyd,  D.  J.  [DC] 7, 

11, 13,  20, 37, 40, 44, 46, 47,  69,  75, 192, 201 ,  202 

U.  S.  V.  Spokane  &  I.  E.  R.  Co.  [unreported],  Rudkin,  D.  J.  [DC] 209 

TJ.  S.,  Spokane  &  I.  E.  R.  Co.  v.  (210  Fed.,  243),  Ross,  C.  J.  [CCA-9]  [affirming 

DC,  206  Fed. ,  988] 33, 209 

U.  S.  V.  Spokane  &  I.  E.  R.  Co.  (206  Fed.,  988),  Rudkin,  D.  J.  [DC]  [affirmed 

by  CCA-9,  210  Fed.,  243] 34,37 

U.  S.  V.  Terminal  R.  Ass'n.  of  St.  L.  (unreported).  Dyer,  D.  J.  [DC] 20, 81 

U.  S.  V.  Trinity  &  B.  V.  Ry.  Co.  (211  Fed.,  448),  Call,  D.  J.  [CCA-5].  12, 14, 98, 212, 215 
U.  S.  V.  Union  Stock  Yards  Co.  of  Omaha  (161  Fed.,  919),  Munger,  D.  J. 

[DC]  [aflarmed  by  CCA-8,  169  Fed.,  404] 29, 30 

U.  S.,  Union  Stock  Yards  Co.  of  Omaha  v.  (169  Fed.,  404),  Van  Devanter, 

C.J.  [CCA-8]  [affirming  DC,  161  Fed.,  919] 29,50 

U.  S.  V.  Wabash  R.  Co.  (unreported),  Humphrey,  D.  J.  [DC]  [affirmed  by 

CCA-7,  168  Fed.,  1] 69,71,202,205 

U.  S.,  Wabash  R.  Co.  v.  (168  Fed.,  1),  Baker,  C.  J.  [CCA-7]  [affirming  DC, 

unreported] 10,30,39,40,42,44,50,179,185,187,209,217 

U.  S.  V.  Wabagh  R.  Co.  (unreported),  Wright,  D.  J.  [DC]  [affirmed  by 

CCA-7, 172  Fed.,  864,  as  to  3  counts  and  reversed  as  to  1] 13, 179 

U.  S.  V,  Wabash  R.  Co.  (172  Fed.,  864),  Grosscup,  C.  J.  [CCA-7]  [aflfirming 

DC,  unreported] 13,18,19,46,79,87 

U.  S.  V.  Wabash-Pittsburgh  Terminal  Ry.  Co.  (unreported),  Orr,  D.  J.  [DC]. .  84 

U.  S.  V.  Western  &  A.  R.  Co.  (184  Fed.,  336),  Newman,  D.  J.  [DC]. .  37, 40, 49, 52, 181 

U.  S.  V.  Wheeling  &  L.  E.  R.  Co.  (167  Fed.,  198),  Tayler,  D.  J.  [DC] 10, 

11, 13,  23, 27, 36, 37, 43, 44, 191 

Wabash  R.  Co.  v,  U.  S.  (168  Fed.,  1),  Baker,  C.  J.  [CCA-7]  [affirming  DC, 

unreported] 10, 30, 39, 40, 42, 44, 50, 179, 185, 187, 209,  217 

Wabash  R.  Co.  v.  U.  S.  (172  Fed.,  864),  Grosscup,  C.  J.  [CCA-7]  [affirming 

DC,  unreported] 13, 18, 19, 46, 79, 87 

Wabash  R.  Co.,  U.  S.  v.  (unreported),  Wright,  D.  J.  [DC]  [affirmed  by  CCA~7, 

172  Fed.,  864,  as  to  3  counts  and  reversed  as  to  1] 179 

Wabash  R.  Co.,  U.  S.  v.  (unreported),  Humphrev,  D.  J.  [DC]  [affirmed  by 

CCA-7,  168  Fed.,  1] ' 69, 71, 202,  205 


SAFETY  APPLIANCE  ACTS.  xv 


Page. 
Wabash- Pittsbiirgh  Terminal  Ry.  Co.,  U.  S.  v.  (unreported),  Orr,  D.  J. 

[DC] 84 

Western  &  A.  R.  Co.,  U.  S.  v.  (184  Fed.,  336),  Newman,  D.  J.  [DC]. .  37, 40, 49, 52, 181 

Wheeling  &  L.  E.  R.  Co.,  U.  S.  v.  (167  Fed.,  198),  Tayler,  D.  J.  [DC] 10, 

11, 13,  23,  27, 36, 37, 43,  44, 191 

B.— Actions  for  Personal  Injury. 

Allen,  Southern  Pacific  Co.  v.  (106  S.  W.,  441),  Neill,  J.  [Texas] 223 

Allen  V.  Tuscarora  Valley  R.  Co.  (78  Atl.,  34)  Mestrezat,  J.  [Pennsylvania]. .        217, 

222, 232 
American  R.  Co.  of  Porto  Rico  v.  Didrickeen  (227  U.  S.,  145),  Lurton,  Justice 

[SC] 64 

Arrighi,  Denver  &  R.  G.  R.  Co.  v.  (129  Fed.,  347),  Hook,  C.  J.  [CCA-8] 222, 229 

Atlantic  Coast  Line  R.  Co.  v.  Whitney  (61  So.,  179),  Hocker,  J.  [Florida]. .  12, 222, 233 

Baker,  Cleveland,  C.  C.  &  St.  L.  Ry.  Co.  v.  (91  Fe4.,  224),  Woods,  C.  J. 
[CCA-7] 223 

Baltimore  &  N.  Y.  Ry.  Co.,  Donegan  v.  (165  Fed.,  869),  Noyes,  C.  J.  [CCA-2].  11,  72, 230 
Barker  v.  Kansas  City,  M.  &  O.  Ry.  Co.  (129  Pac.,  1151),  West,  J.  [Kansas]. . .  184 

Benson,  Lake  Shore  &  M.  S.  Ry.  Co.  v.  (97  N.  E.,  417)  Donahue,  J.  [Ohio].  7, 47, 193 

Brady,  Union  Pacific  R.  Co.  v.  (161  Fed.,  719),  Hook,  C.  J.  [CCA-8] 73, 74, 229 

Bresky  v.  Minneapolis  &  St.  L.  Ry.  Co.  (132  N.  W.,  337),  Bunn,  J.  [Minne- 
sota]  '. 37, 183 

Briggs  V,  Chicago  &  N.  W.  Ry.  Co.  (125  Fed.,  745),  Thayer,  C.  J.  [CCA-8]. . .  228 

Brinkmeier  v.  Missouri  Pacific  Ry.  Co.  (105  Pac.,  221),  Mason,  J.  [Kansas] 

[afl5rming93Pac.,  621;  affirmed  in  224  U.  S.,  268] 8,12,42 

Brinkmeier  v.  Missouri  Pacific  Ry.  Co.  (224  XJ.  S.,  268),  Van  Devanter,  Jus- 
tice [SC]  [affirming  105  Pac . ,  221] 42 

Brinkmeier,  Missouri  Pacific  Ry.  Co.  v.  (93  Pac.,  621),  Graves,  J.  [Kansas] 

[reversing  77  Pac.,  586;  affirmed  in  105  Pac.,  221] 12, 42, 193, 231 

Bromberg,  Mobile,  J.  &  K.  C.  R.  Co.  v.  (37  So.,  395),  Dowdell,  J.  [Alabama]. .      47, 52 

Brooks  V.  Southern  Pacific  Co.  (207  U.  S.,  463),  White,  Justice  [SC] 116 

Brown,  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  (185  Fed.,  80),  Grosscup,  C.  J.  [CCA-7] 

[aflarmed  in  229  U.  S.,  317] 10, 73, 222, 229, 230, 233 

Brown,  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  (229  U.  S.,  317),  McKenna,  Justice 

[SC]  [affirming  185  Fed .,  80] 71, 229 

Buffalo  R.  &  P.  Ry.  Co.,  Schlemmer  v.  (205  U.  S.,  1),  Holmes,  Justice  [SC] 

[1st  appeal;  207  Pa.  St.,  198,  reversed] 27, 40, 46, 47, 193, 211, 218, 223, 229 

Buffalo  R.  &  P.  Ry.  Co.,  Schlemmer  v.  (220  U.  S.,  590),  Day,  Justice  [SC] 

[2d  appeal;  222  Pa.  St.,  470,  affirmed] 221,223,228 

Burho  V.  Minneapolis  &  St.  L.  Ry.  Co.  (141  N.  W.,  300),  Holt,  J.  [Minnesota]  12, 

42,  70,  74,  232 
Burlington,  C.  R.  &  N.  Ry.  Co.,  Gilbert  v.  (128  Fed.,  529),  Sanborn,  C.  J. 
[CCA-8] 17,73,74,229 

Campbell,  Rio  Grande  Southern  R.  Co.  v.  (96  Pac.,  986)  Gabbert,  J.  [Colo- 
rado]    49 

Campbell  v.  Spokane  &  I.  E.  R.  Co.  (188  Fed.,  516),  Rudkin,  D.  J.  [CC]. ...  39, 44, 226 
CaroUna  &  N.  W.  R.  Co.,  Montgomery  v.  (80  S.  E.,  83)  Clark,  Ch.  J.  [North 

Carolina] 12,  68,  71,  75, 80, 222 

Carson  v.  Southern  Ry.  Co.  (46  S.  E.,  525),  Pope,  C.  J.  [South  Carolina] 

[affirmed  in  194  U.  S.,  136] 12 


XVI  TABLES  OF  CASES. 


Page. 

Carson,  Southern  Ry.  Co.  v.  (194  U.  S.,  136),  Fuller,  Chief  Justice  [SCJ  [affirm- 
ing 46  S.  E.,  525] 226 

Central  of  Georgia  Ry.  Co.,  Snead  v.  (151  Fed.,  608),  Speer,  D.  J.  [CC] 43, 48 

Charleston  &  W.  C.  Ry.  Co.,  Lyon  v.  (56  S.  E.,  18),  Woods,  J.  [South  CarolinaJ .  65 

Chesapeake  &  0.  Ry.  Co.  et  al.,  Nichols  v.  (105  S.  W.  481),  Barker,  J.  [Ken- 
tucky]   216 

Chesapeake  &  O.  Ry.  Co.,  Nichols  v,  (195  Fed.,  913),  Denison,  C.  J.  [CCA-6].  12, 

71,72,222,229,230 

Chicago  &  0.  R.  R.  Co.,  Devine  v.  (102  N.  E.,  803),  Vickers,  J.  [Illinois]..  30, 

35,42,49,52,230,231 

Chicago  &  N.  W.  Ry.  Co.,  Briggs  v.  (125  Fed.,  745),  Thayer,  C.  J.  [CCA-8] . .  228 

Chicago  Great  Western  Ry.  Co.,  Dodge  v.  (146  N.  W.,  14),  Withrow,  J.  [Iowa] .         231 

Chicago  Great  Western  Ry.  Co.,  Johnston  v.  (164  S.  W.,  260),  Johnson,  J. 

[Missouri] 17, 37,  42,  46,  73, 182, 184, 229,  230 

Chicago  Junction  Ry.  Co.  v.  King  (169  Fed.,  372),  Baker,  C.  J.  [CCA-7] 

[affirmedin222U.  S.,  222] 10,13,15,16,39,92,223 

Chicago  Junction  Ry.  Co.  v.  King  (222  U.  S.,  222),  White,  Chief  Justice  [SC] 
[affirming  169  Fed.,  372] 10 

Chicago,  M.  &  St.  P.  Ry.  Co.,  Voelker  v.  (116  Fed.,  867),  Shiras,  D.  J.  [CC] 

[reversed  in  129  Fed.,  522] 7,35,44,76,224,227,231 

Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Voelker  (129  Fed.,  522),  Van  Devanter  [CCA-8] 

[reversing  116  Fed.,  867] 68,74,76,181,194,224,225 

Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Brown  (185  Fed.,  80),  Grosscup,  C.  J.  [CCA-7] 
[affirmed  in  229  U.  S.,  317] 10,73,222,229,230,233 

Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Brown  (229  U.  S.,  317),  McKenna,  Justice  [SC] 
[affirming  185  Fed.,  80] 71, 229 

Chicago,  R.  I.  &  P.  Ry.  Co.,  Steams  v.  (148  N.  W.,  128),  Deemer,  J.  [Iowa].  12, 

27,42,57,232 

Chicago,  R.  I.  &  P.  Ry.  Co.,  Dawson  v.  (114  Fed.,  870),  Thayer,  C.  J.  [CCA-8].  83 

Choctaw,  O.  &  S.  R.  Co.,  Suttle  v.  (144 Fed.,  668),  Adams,  C.  J.  [CCA-8].  47, 73,  74, 229 

Cleveland,  C,  C.  &  St.  L.  Ry.  Co.  v.  Baker  (91  Fed.,  224),  Woods,  C.  J. 
[CCA-7] 22S 

Coley  V.  North  Carolina  Ry.  Co.  (57  L.  R.  A.,  817),  Furches,  J.  [North  Carolina]         222 

Conarty,  St.  Louis  &  S.  F.  R.  Co.  v.  (155  S.  W.,  93),  McCuUoch,  Ch.  J. 
[Arkansas] 12, 62 

Crawford  v.  New  York,  C.  &  H.  R.  R.  Co.  (10  Am.  Neg.,  166),  Dickey,  J. 
[New  York] 26,  51 

Crockett,  Southern  Ry.  Co.  v.  (234  U.  S.,  725),  Pitney,  Justice  [SC] 8, 

42,  46,  47,  79,  87,  88, 192, 193 

Dailey  v.  Southern  Ry.  Co.  (unreported),  Sanford,  D.  J.  [CC] 222, 229, 231 

Dawson  v.  Chicago,  R.  I.  &  P.  Ry.  Co.  (114  Fed.,  870),  Thayer,  C.  J.  [CCA-8].  83 

Delk,  St.  Louis  &  S.  F.  R.  Co.  v.  (158  Fed.,  931),  Severens,  C.  J.  [CCA-6] 

[reversed  in  220  U.  S.,  580] 12, 14,  76,  92, 180,  222 

Delk  V.  St.  Louis  &  S.  F.  R.  Co.  (220  U.  S.,  580),  Harlan,  Justice  [SC] 

[reversing  158  Fed.,  931] 11, 13,  51, 112, 114 

Denver  &  R.  G.  R.  Co.  v.  Arrighi  (129  Fed.,  347),  Hook,  C.  J.  [CCA-8] 222, 229 

Denver  &  R.  G.  R.  Co.,  Felt  v.  (110  Pac,  215),  Per  Curiam  [Colorado].  39,  42,  44, 181 
Denver  &  R.  G.  R.  Co.  v.  Gannon  (90  Pac,  853),  Goddard,  J.  [Colorado]. ...  222 

Devine  v.  Chicago  &  C.  R.  R.  Co.  (102  N.  E.,  803),  Vickers,  J.  [Illinois]. ...  30, 

35,  42, 49,  52, 230, 231 
Devine  v.  Illinois  Central  R.  Co.  (156  111.  App.,  369),  Freeman,  J.  [Illinois], 

27,  42,  44,  230 


SAFETY  APPLIANCE  ACTS.  xvn 


Didricksen,  American  R.  Co.  of  Porto  Rico  v.  (227  U.  S.,  145),  Lurton,  Jus- 
tice [SC] 64 

Dodge  V.  Chicago  Great  Western  Ry.  Co.  (146  N.  W.,  14),  Withrow,  J.  [Iowa].  231 

Donegan  v.  Baltimore  &  N.   Y.   Ry.   Co.   (165  Fed.,  869),  Noyes,  C.  J. 

[CCA-2] 11,72,230 

Elder,  International  &  Great  Northern  Ry.  Co.  v.  (99  S.  W.,  856),  Conner, 
Ch.  J.  [Texas] 49 

Employer's  Liability  Cases  (207  U.  S.,  463),  White,  Justice  [SC] 116 

Erie  R.  Co.,  Rosney  i;.  (135  Fed.,  311),  Coxe,  C.  J.  [CCA-2] 52,62 

Erie  R.  Co.  V.  Russell  (183  Fed.,  722),  Noyes,  C.  J.  [CCA-2] 37, 52, 181, 230 

Felt  V.  Denver  &  R.  G.  R.  Co.  (110  Pac,  215),  Per  Curiam  [Colorado],  [Col- 
orado]  39,42,44,181 

Flippo,  Kansas  City,  M.  &  B.  R.  Co.  v.  (35  So.,  457),  Dowdell,  J.  [Alabama] 

80, 219, 229 

Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Kurtz  (147  S.  W.,  658),  James,  Ch.  J.  [Texas].  12, 

17,216,222,228 
Gannon,  Denver  &  R.  G.  R.  Co.  v.  (90  Pac,  853),  Goddard,  J.  [Colorado].. .  222 

Gilbert  v.  Burlington,  C.  R.  &'  N.  Ry.  Co.  (128  Fed.,  529),  Sanborn,  C.  J. 

[CCA-8] 17, 73,  74, 229 

Gordon,  Toledo,  St.  L.  &  W.  R.  Co.  v.  (177  Fed.,  152),  Anderson,  D.  J. 

[CCA-7] 229 

Grand  Trunk  Western  Ry.  Co.  v.  Lindsay  (201  Fed.,  836),  Per  Curiam  [CCA-7] 

affirmed  in  233  U.  S.,  42] 210,216,222,223,228,229,233 

Grand  Trunk  Western  Ry.  Co.  v.  Lindsay  (233  U.  S.,  42),  White,  Chief 

Justice  [SC]  [affirming  201  Fed.,  836] 52, 232 

Gray  v,  Louisville  &  N.  R.  Co.  (197  Fed.,  874),  Sanford,  D.  J.  [CC]. .  7, 23, 35,  52, 193, 197 
Great  Northern  Ry.  Co.,  Johnson  v.  (178  Fed.,  643)  Hunger,  D.  J.  [CCA-8]. .  11, 

26,  44,  52,  74, 229,  230 
Great  Northern  Ry.  Co.,  Kelley  v.  (152  Fed.,  211),  Morris,  D.  J.  [CC] 10 

Hazeh^g,  Norfolk  &  W.  Ry.  Co.  v.  (170  Fed.,  551)  Severens,  0.  J.  [CCA-6] 

[1st  appeal;  CC  reversed] 12, 14, 73, 224, 229 

Hazehigg,  Norfolk  &  W.  Ry.  Co.  v.  (184  Fed.,  828),  Knappen,  C.  J.  [CCA-6] 

[2d  appeal ;  CC  affirmed] 72,  73, 74, 222, 229, 230, 233 

Henry,  Nashville,  C.  &  St.  L.  Ry.  Co.  v,  (164  S.  W.,  310)  Clay,  C.  [Ken- 
tucky]   12,14,52,71,205,226 

Hohenleitner  v.  Southern  Pacific  Co.  (177  Fed,,  796),  Bean,  D.J.  [CC].37, 39, 44, 71, 77 

Hood,  Mallott  v.  (66  N.  E.,  247)  Boggs,  J.  [Illinois] 44 

Howard  v.  Illinois  Cent.  R.  Co.  (207  U.  S.,  463)  White,  Justice  [SC] 116 

Illinois  Central  R.  Co.,  Devine  v.  (156  111.  App.,  369)  Freeman,  J.  [Illinois].  27, 

42, 44, 230 

Illinois  Central  R.  Co.,  Howard  v.  (207  U.  S.,  463)  White,  Justice  [SC] 116 

Illinois  Central  R.  Co.,  Willet  v.  (142  N.  W.,  883),  Taylor,  Com'r.  [Minnesota].  12, 71, 78 
International  &  Great  Northern  Ry.  Co.  v.  Elder  (99  S.  W.,  856),  Conner,  Ch.  J. 
[Texas] 49 

Johnson  v.  Great  Northern  Ry.  Co.  (178  Fed.,  643),  Hunger,  D.  J.  [CCA-8]..    11,26, 

44,52,74,229,230 
Johnson  v.  Southern  Pacific  Co.  (117  Fed.,  462),  Sanborn,  C.  J.  [CCA-8] 

[Reversed  in  196  U.  S.,  1] 7,  8, 12,  44, 46,  48,  75, 192, 193, 194, 197, 223 

50611—15 II 


xvni  TABLES  OF  CASES. 


Page. 
Johnson  v.  Southern  Pacific  Co.  (196  U.  S.,  1),  Fuller,  Chief  Justice,  [SO] 

[reversing  117  Fed.,  462] 7,  9, 19, 21, 27, 

39, 42,  44,  46,  47,  48,  49,  67,  68,  71,  75,  82, 108, 182, 192, 193, 194, 196, 197 
Johnston  v.  Chicago  Great  Western  Ry.  Co.  (164  S.  W.,  260),  Johnson,  J. 

[Missouri] 17,37,42,46,73,182,184,229,230 

Kansas  City,  M.  &  O.  Ry.  Co.,  Barker  v.  (129  Pac,  1151)  West,  J.  [Kansaa]. .  184 
Kansas  City,  M.  &  B.  R.  Co.  v.  Flippo  (35  So.,  457),  Dowdell,  J.  [Alabama].  80, 219, 229 
Kansas  City,  M.  &  O.  Ry.  Co.,  Thornbro  v.  (139  Pac.,  410)  Benson,  J.  [Kan- 
sas]   37,  42, 230, 232 

Kelley  v.  Great  Northern  Ry.  Co.  (152  Fed.,  211),  Morris,  D.  J.  [CC] 10 

King,  Chicago  Junction  Ry.  Co.  v.  (169  Fed.,  372),  Baker,  C.  J.  [CCA-7] 

[affirmed  in  222  U.  S.,  222] 10,13,15,16,39,92,223 

King,  Chicago  Junction  Ry.  Co.  v.  (222  U.  S.,  222),  White,  Chief  Justice 

[SC]  [affirming  169  Fed.,  372] 10 

Kurtz,  Galveston,  H.  &  S.  A.  Ry.  Co.  v.  (147  S.  W.,  658)  James,  Ch.  J. 
[Texas] 12,17,216,222,228 

Lake  Shore  &  M.  S.  Ry.  Co.  v.  Benson  (97  N.  E.,  417)  Donahue,  J.  [Ohio]. . .  7, 47, 193 
Lake  Shore  &  M.  S.  Ry.  Co.,  Luken  v.  (94  N.  E.,  175)  Farmer,  J.  [IlUnois].  12, 

15,42,44,49,189,222 
Lake  Shore  &  M.  S.  Ry.  Co.,  Luken  v.  (154  111.  App.,  550)  Holdom,  P.  J. 

[Illinois] 7,12,80,193,222 

La  Mere  v.  Ry.  Trans.  Co.  of  Minneapolis  (145  N.  W.,  1068)  Dibell,  Com'r. 

[Minnesota] 8,39,56,193,222.226,230 

Larabee  v.  New  York,  N.  H.  &  H.  R.  Co.  (66  N.  E.,  1032)  Holmes,  Ch.  J. 

[Massachusetts] 47 

Lindsay,  Grand  Trunk  Western  Ry.  Co.  v.  (201  Fed.,  836)  Per  Curiam  [CCA-7] 

[affirmed  in  233  U.  S.,  42] 210,216,222,223,228,229,233 

Lindsay,  Grand  Trunk  Western  Ry.  Co.  v.  (233  U.  S.,  42),  White,  Chief 

Justice  [SC]  [affirming  201  Fed.,  836] 52, 232 

Louisville  &  N.  R.  Co.,  Gray  v.  (197  Fed.,  874),  Sanford,  D.  J.  [CC]  7, 23, 35,  52, 193, 197 
Luken  v.  Lake  Shore  &  M.  S.  Ry.  Co.  (94  N.  E.,  175),  Farmer,  J.  [Illinois]. .  12, 

15,  42,  44,  49, 189, 222 
Luken  v.  Lake  Shore  &  M.  S.  Ry.  Co:  (164  111.  App.,  550)  Holdom,  P.  J. 

[IlUnois] , 7,12,80,193,222 

Lyon  V.  Charleston  &  W.  C.  Ry.  Co.  (56  S.  E.,  18),  Woods,  J.  [South  Carolina]. .  65 

Mallott  V.  Hood  (66  N.  E.,  247),  Boggs,  J.  [Illinois] 44 

Minneapolis  &  St.  L.  Ry.  Co.,  Bresky  v.  (132  N.  W.,  337),  Bunn,  J.  [Minne- 
sota]     37,183 

Minneapolis  &  St.  L.  Ry.  Co.,  Burho  v.  (141  N.  W.,  300),  Holt,  J.  [Minne- 
sota]  12,42,70,74,232 

Minneapolis,  St.  P.  &  S.  S.  M.  Ry.  Co.,  Popplar v.  (141 N.  W.,  798),  Hallam,  J. 
[Minnesota] 12,42,52,71,73,229,232 

Missouri  Pacific  Ry.  Co.  v.  Brinkmeier  (93  Pac,  621),  Graves,  J.  [Kansas] 
[reversing  77  Pac,  586;  affirmed  in  105  Pac,  221] 12, 42, 193,  231 

Missouri  Pacific  Ry.  Co.,  Brinkmeier  v.  (105  Pac,  221)  Mason,  J.  [Kansas] 
[affirming  93  Pac,  621;  affirmed  in  224  U.  S.,  268] 8,12,42 

Missouri  Pacific  Ry.  Co.,  Brinkmeier  v.  (224  U.  S.,  268)  Van  Devanter,  Justice 
[SC]    [aflirming  105  Pac,  221] 42 

Mobile,  J.  &  K.  0.  R.  Co.  v.  Bromberg  (37  So.,  395)  Dowdell,  J.  [Alabama]. .      47, 52 


SAFETY  APPLIANCE  ACTS.  xix 


Pag«. 
Montgomery  v.  (  arolina  &  N.  W.  R.  Co.  (80  S.  E.,  83)  Clark,  Ch.  J.  [North 

Carolina]..... 12,68,71,75,80,222 

Morris  v.  St.  Louis  S.  W.  Ry.  Co.  of  Tex.  (158  S.  W.,  1055)  Willson,  C.  J. 

[Texas] 76,215 

Myrtle  v.  Nevada  C.  &  0.  Ry.  Co.  (137  Fed.,  193)  Hawley,  D.  J.  [CC] 216 

Nashville,  C.  &  St.  L.  Ry.  Co.  v.  Henry  (164  S.  W.,  310)  Clay,  C.  [Ken- 
tucky]   12,14,52,71,205,226 

Neal,  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  (78  S.  W.,  220)  Riddick,  J.  [Arkansas] 
[affirmed  in  98  S.  W.,  958] 12,87,222 

Neal,  St.  Loub,  I.  M.  &  S.  Ry.  Co.  v.  (98S.  W.,958),Hill,  Ch.  J.  [Arkansas] 
[affirming  78  S.  W.,  220;  reversed  in  210  U.  S.,  281] 216 

Nevada,  C.  &  0.  Ry.  Co.,  Myrtle  v.  (137  Fed.,  193)  Hawley,  D.  J.  [CC] 216 

New  York,  Central  &  H.  R.  R.  Co.,  Crawford  v.  (10  Am.  Neg.,  166),  Dickey, 
J.  [New  York] 26,61 

New  York  Central  &  H.  R.  R.  Co.,  Siegel  v.  (178  Fed.,  873)  Archbald,  D.  J. 
[CC] 12,  16,40,42,44,52,93,100,182,197 

New  York,  N.  H.  &  H.  R.  Co.,  Larabee  v.  (66  N.  E.,  10,32)  Holmes,  Ch.  J. 
[Massachusetts] 47 

Nichols  V.  Chesapeake  &  0.  Ry.  Co.  et  al.  (105  S.  W.,  481),  Barker,  J.  [Ken- 
tucky]   216 

Nichols  V.  Chesapeake  &  O.  Ry.  Co.  (195  Fed.,  913),  Denison,  C.  J.  [CCA-6]. . .  12, 

71,72,222,229,230 

Norfolk  &  W.  Ry.  Co.  v.  Hazelrigg  (170  Fed.,  651),  Severens,  0.  J.  [CCA-6] 
[1st  appeal;  CC  reversed] 12,14,73,224,229 

Norfolk  &  W.  Ry.  Co.  v.  Hazelrigg  (184  Fed.,  828),  Knappen,  C.  J.  [CCA-6] 
[2d  appeal;  CC  affirmed] 72,73,74,222,229,230,233 

North  Carolina  Ry.  Co.,  Coley  v.  (57  L.  R.  A.,  817)  Furches,  Ch.  J.  [North 
CaroUna] 222 

Northern  Pacific  Ry.  Co.,  Plummer  v.  (152  Fed.,  206)  Hanford,  D.  J.  [CC].  10, 11,  222 

Pennell  v.  Philadelphia  &  R.  Ry.  Co.  (203  Fed.,  681)  Buffington,   C.  J. 

[CCA-3]  [affirmed  in  231  U.  S.,  675] 70 

Pennell  v.  Philadelphia  &  R.  Ry.  Co.  (231  U.  S.,  675),  McKenna,  Justice 

[SC]  [affirming  203  Fed.,  681] 27,28,70,193,198 

Philadelphia  &  R.  Ry.  Co.,  Pennell  v.  (203  Fed.,  681)  Buffington,  C,  J. 

[CCA-3]  [affirmed  in  231  U.  S.,  675] 70 

Philadelphia  &  R.  Ry.  Co.,  Pennell  v.  (231  U.  S.,  675)  McKenna,  Justice 

[SC]  [affirming  203  Fed.,  681] 27,28,70,193,198 

Philadelphia  &  R.  Ry.  Co.,  Winkler  v.  (53  Atl.,  90)  Lore,  Ch.  J.  [Delaware] 

[affirmed  in  56  Atl.,  112] 36,41,47,75,222,225,226,228,229,232 

Philadelphia  &  R.  Ry.  Co.  v.  Winkler  (56  Atl.,  112)  Boyce,  J.  [Delaware] 

[affirming  53  Atl.,  90] 10,12,47,71,75,225,226,228 

Plummer  v.  Northern  Pacific  Ry.  Co.  (152  Fed.,  206),  Hanford,  D.  J.  [CC]. .  10, 11,  222 
Popplar  V.  Minneapolis,  St.  P.  &  S.  S.  M.  Ry.  Co.  (141 N.  W.,  798),  Hallam,  J. 

[Minnesota] 12,42,52,71,73,229,232 

Quincy,  O.  &  K.  0.  Ry.  Co.,  Shohoney  v.  (122  S.  W.,  1025),  Valliant,  J.  [Mis- 
souri]   *. 30,  226 

Ry.  Trans.  Co.  of  Minneapolis,  La  Mere  v.  (145  N.  W.,  1068),  Dibell,  Com*r. 

[Minnesota] 8,39,56,193,222,226,230 

Republic  Iron  &  Steel  Co. ,  Taggart  v.  (141  Fed. ,  910),  Richards,  C.  J.  [CCA-6]  80 


XX  TABLES  OF  CASES. 


Pae«. 

Rio  Grande  Southern  R,  Co.  v.  Campbell  (96  Par.,  986),  Gabbert,  J.  [Colo- 
rado]    49 

Rosney  v.  Erie  R.  Co.  (135  Fed.,  311),  Coxe,  C.  J.  [CCA-2] 52, 62 

Russell,  Erie  R.  Co.  v.  (183  Fed.,  722),  Noyes,  C.  J.  [CCA-2] 37,52,181,230 

Russell,  Wheeling  Terminal  Ry.  Co.  v.  (209  Fed.,  795),  Rose,  D.  J.  [CCA-4].  42, 

52, 183, 202 

St.  Louis& S.  F.  R.  Co.  v.  Conarty  (155 S.W.,  93),  McCiilloch, Ch.  J.  [Arkansas].      12, 52 

St.  Louis  &  S.  F.  R.  Co.  v.  Delk  (158  Fed.,  931),  Severens,  C.  J.  [CCA-6] 
[reversed  in  220  U.  S.,  580] 12, 14,  76, 92, 180, 222 

St.  Louis  &  S.  F.  R.  Co.,  Delk  v.  (220  U.  S.,  580),  Harlan,  Justice  [SC]  [revers- 
ing 158  Fed.,  931] 11,13,51,112,114 

St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  York  (123  S.  W.,  376),  Frauenthal,  J.  [Arkan- 
saa] 73,229,230,232 

St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Neal  (78  S.  W.,  220),  Riddick,  J.  [Arkansas] 

[affirmed  in  98  S.  W. ,  958] 12, 87, 222 

St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Neal  (98  S.  W.,  958),  Hill,  Ch.  J.  [Arkansas]  • 
[affirming  78  S.  W.,  220;  resversed  in  210  U.  S.,  281] 216 

St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Taylor  (210  U.  S.,  281),  Moody,  Justice  [SC] 

[Reversing  98  S.  W.,  958] 8, 10, 11, 12, 13, 17, 86, 87, 108, 112, 113, 114, 115, 195 

St.  Louis  S.  W.  Ry.  Co.  of  Tex.,  Morris  v.  (158  S.  W.,  1055),  Willson,  Ch.  J. 

[Texas] 76,215 

Schlemmer  v.  Buffalo,  R.  &  P.  Ry.  Co.  (205  U.  S.,  1),  Holmes,  Justice  [SC] 
(1st  appeal;  207  Pa.  St.,  198,  reversed] 27, 40, 46, 47, 193, 211, 218, 223, 229 

Schlemmer  v.  Buffalo,  R.  &  P.  Ry.  Co.  (220  U.  S.,  590),  Day,  Justice  [SC] 
[2d  appeal;  222  Pa.  St.,  470,  affirmed] 221, 223,  228 

Sellers,  Toledo,  St.  L.  &  W.  R.  Co.  v.  (184  Fed.,  885),  Grosscup,  0.  J.  [CCA-7].         215 

Shohoney  v.  Quincy,  0.  &  K,  C.  Ry.  Co.  (122  S.  W.,  1025),  Valliant,  J.  [Mis- 
souri]      30, 226 

Siegel  V.  New  York  Central  &  H.  R.  R.  Co.  (178  Fed.,  873),  Archbald,  D.  J. 

[CC] 12,16,40,42,44,52,93,100,182,197 

Simmons,  Southern  Ry.  Co.  v.  (55  S.  E.,  459),  Keith,  Pres.  [Virginia] 68 

Snead  v.  Central  of  Georgia  Ry.  Co.  (151  Fed.,  608),  Speer,  D.  J.  [Georgia]. .      43, 48 

Snyder  v.  Southern  Ry.  Co.  (unreported),  Sanford,  D.  J.  [CC]  [reversed  in 

187  Fed.,  492] 7,10,27,44,97,193,230 

Snyder,  Southern  Ry.  Co.  i>.  (187  Fed.,  492),  Knappen,  C.  J.  [CCA-6]  [Ist 

appeal;  CC  reversed] 37,44,45,49,52,92,193 

Snyder,  Southern  Ry.  Co.  v.  (205  Fed.,  868),  Knappen,  C.  J.  (CCA-6]  [2d 

appeal;  DC  affirmed] 39, 45, 52, 92, 222 

Southern  Pacific  Co.  v.  Allen  (106  S.  W.,  441),  Neill,  J.  [Texas] 223 

Southern  Pacific  Co.,  Brooks  v.  (207  U.  S.,  463),  White,  Justice  [SC] 116 

Southern  Pacific  Co.,  Hohenleitneri;.  (177  Fed.,  796),  Bean,  D..J.  [CC].  37, 39, 44, 71, 77 

Southern  Pacific  Co.,  Johnson  v.  (117  Fed.,  462),  Sanborn,  C.  J.  [CCA-8] 

[reversed  in  196  U.  S.,  1] 7, 8, 12, 44, 46, 48, 75, 192, 193, 194, 197, 223 

Southern  Pacific  Co.,  Johnson  v.  (196  U.  S.,  1),  Fuller,  Chief  Justice  [SC] 

[reversing  117  Fed.,  462] 7,9,19,21,27, 

39, 42, 44, 46, 47, 48, 49, 67, 68,  71,  75, 82, 108, 182, 192, 193, 194, 196, 197 

Southern  Ry.  Co.,  Carson  v.  (46  S.  E.,  525),  Pope,  Ch.  J.  [South  Carolina] 

[affirmed  in  194  U.  S.,  136] 12 

Southern  Ry.  Co.  v.  Carson  (194  U.  S.,  136),  Fuller,  Chief  Justice  [SC]  [affirm- 
ing 46  S.  E.,  525] 226 

Southern  Ry.  Co.  v.  Crockett  (234  U.  S.,  725),  Pitney,  Justice  [SC] 8, 

42,  46,  47,  79,  87,  88, 192, 193 


SAFETY  APPLIANCE  ACTS.  xxi 


Page. 

Southern  Ry.  Co.,  Dailey  v.  (unreported),  Sanford,  D.  J  [CO] 222, 229, 231 

Southern  Ry.  Co.  v.  Shnmons  (55  S.  E.,  459),  Keith,  Pres.  [Virginia] 68 

Southern  Ry.  Co.,  Snyder  v.  (unreported),  Sanford,  D.  J.  [CC]  [reversed  in 

187  Fed.  492] 7,10,27,44,97,193,230 

Southern  Ry.  Co.  v.  Snyder  (187  Fed.,  492),  Knappen,  C.  J.  [CCA-6]  [Ist 

appeal;  CC  reversed] 37,44,45,49,52,92,193 

Southern  Ry.  Co.  v.  Snyder  (205  Fed.,  868),  Knappen,  C.  J.  [CCA-6]  [2d 

appeal;  DC  affirmed] 39, 45, 52, 92, 222 

Southern  Ry.  Co.,  Troxler  v.  (32  S.  E.,  550),  Clark,  J  [North  Carolina] 227 

Spokane  &  I.  E.  R.  Co.,  Campbell  v.  (188  Fed.,  516),  Rudkin,  D.  J.  [DC]. . . .  39, 44,  226 
Stearns  v.  Chicago,  R.  I.  &  P.  Ry.  Co.  (148  N.  W.,  128),  Deemer,  J.  [Iowa]. .  12, 

27,42,57,232 
Suttle  V.  Choctaw,  O.  &  G.  R.  Co.  (l44  Fed.,  668),  Adams,  C.  J.  [CCA-8] .  47, 73, 74, 229 
Swearingen,  Texas  &  Pacific  Ry.  Co.  v.  (122  Fed.,  193),  McCormick,  C.  J. 

[CCA-5] 222 

Taggart  v.  Republic  Iron  &  Steel  Co.  (141  Fed.,  910),  Richards,  0.  J.  [CCA-6].  80 

Taylor,  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  (210  U.  S.,  281),  Moody,  Justice 

[SC]  [reversing  98  S.  W.,  958]. . . .  8, 10, 11, 12, 13, 17, 86, 87, 108, 112, 113, 114, 115, 195 
Texas  &  Pacific  Ry.  Co.  v.  Swearingen  (122  Fed.,  193),  McCormick,  0.  J. 

[CCA-5] 222 

Thombro  v.  Kansas  City,  M.  &  0.  Ry.  Co.  (139  Pac.,  410),  Benson,  J.  [Kan- 
sas]   37,42,230,232 

Toledo,  St.  L.  &  W.  R.  Co.  v.  Gordon  (177  Fed.,  152),  Anderson,  D.  J.  [CCA-7].  229 

Toledo,  St.  L.  &  W.  R.  Co.  v.  Sellers  (184  Fed.,  885),  Grosscup,  0.  J.  [CCA-7].  215 

Troxler  v.  Southern  Ry.  Co.  (32  S.  E.,  550),  Clark,  J.  [North  Carolina] 227 

Tuscarora  Valley  R.  Co.,  Allen  v.  (78  Atl.,  34)  Mestrezat,  J.  [Pennsyl- 
vania]  217,222,232 

Union  Pacific  R.  Co.  v.  Brady  (161  Fed.,  719),  Hook,  0.  J.  [COA-8] 73, 74, 229 

Union  Pacific  R.  Co.,  Yost  v.  (149  S.  W.,  577)  Blair,  0.  [Miseouri] 74,232 

Voelker  v.  Chicago,  M.  &  St.  P.  Ry.  Co.  (116  Fed.,  867),  Shiras,  D.  J.  [CC] 
[reversed  in  129  Fed.,  522] 7,35,44,76,224,227,231 

Voelker,  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  (129  Fed.,  522),  Van  Devanter, 

C.  J.  [CCA-8]  [reversing  116  Fed.,  867] 68, 

74,76,181,194,224,225 

Wheeling  Terminal  Ry.  Co.  v.  Russell  (209  Fed.,  795),  Rose,  D.  J.  [CCA-4]. .  42, 

52,183,202 

Whitney,  Atlantic  Coast  Line  R.  Co.  v.  (61  So.,  179),  Hooker,  J.  [Florida].  12, 222, 233 

Willett  V.  IlUnois  Central  R.  Co.  (142  N.  W.,  883),   Taylor,   Com'r.    [Min- 
nesota]   -  12, 71, 78 

Winkler  v.  Philadelphia  &  R.  Ry.  Co.  (53  Atl.,  90),  Lore,  Ch.  J.  [Delaware] 
[aflarmed  in  56  Atl.,  112] 36, 41, 47,  75, 222, 225, 226, 228, 229, 232 

Winkler,  Philadelphia  &  R.  Ry.  Co.  v.  (56  Atl.,  112),  Boyce,  J.  [Delaware] 

[affirming  53  Atl.,  90] 10,12,47,71,75,225,226,228 

York,  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  (123  S.  W.,  376),  Frauenthal,  J.  [Ar- 
kansas]   12,73,229,230,232 

Yost  V.  Union  Pacific  R.  Co.  (149  S.  W.,  577),  Blair,  C.  [Missouri] 74,232 


xxn  TABLES  OF  CASES. 


II.— CASES  UNDER  THE  FEDERAL  HOURS  OF  SERVICE  ACT,  WITH 
OTHER  CASES  IN  WHICH  THE  ACT  HAS  BEEN  CONSTRUED. 

A. — Penal  Actions. 

Page. 
Atchison,  T.  &  S.  F.  Ry.  Co.,  U.  S.  v.  (177  Fed.,  115),  Landis,  D.  J.  [DC] 

[reversed  in  177  Fed.,  114] .^ 122, 131, 147, 150, 151 

Atchison,  T.  &  S.  F.  Ry.  Co.  v.  U.  S.  (177  Fed.,  114),  Grosscup,  0.  J.  [CCA-7] 

[affirmed  in  220  U.  S.,  37,  reversing  117  Fed.,  115] 150, 151, 152 

Atchison,  T.  &  S.  F.  Ry.  Co.,  U.  S.  v.  (220  U.  S.,  37)  Holmes,  Justice  [SC] 

[177  Fed.,  114,  affirmed,  177  Fed.,  115,  reversed] 140, 141, 143, 144, 149, 151 

Atchison,  T.  &  S.  F.  Ry.  Co.,  U.  S.  v.  (212  Fed.,  1000),  Sawtelle,  D.  J.  [DC]. .        101, 

163, 165, 168, 170, 198 

Atlantic  Coast  Line  R.  Co.,  U.  S.  v.  (211  Fed.,  897),  Knapp,  C.  J.  [CCA-4]. .        106, 

116, 144, 147, 148, 150, 158, 193 

Baltimore  &  0.  R.  Co.  v.  Int.  Com.  Com.  (221  U.  S.,  612),  Hughes,  Justice 

[SC] 34,108,111,116,122,128,130,1.34,174 

Boston  &  M.  R.  Co.,  U.  S.  v.  (unreported),  Aldrich,  D.  J.  [DC] 119, 128, 171 

Chicago,  M.  &  P.  S.  Ry.  Co.,  U.  S.  v.  (195  Fed.,  783),  Hanford,  D.  J.  [DC]. .        113, 

125, 127, 175, 177, 194 
Chicago,  M.  &  P.  S.  Ry.  Co.,  U.  S.  v.  (197  Fed.,  624),  Rudkin,  D.  J.  [DC]. .        106, 

125, 132, 138, 139, 140, 141, 150, 170, 171, 181, 193 
Chicago,  M.  &  St.  P.  Ry.  Co.,  U.  S.  v.  (212  Fed.,  574),  Sanborn,  D.  J.  [DC]. .  170 

(Mcago,  M.  &  St  P.  Ry.  Co.,  State  v.  (117  N.  W.,  686),  Dodge,  J.  [Wisconsin] . .        109, 

116, 122, 129, 186, 188, 189, 19T 
Chicago,  R.  I.  &  P.  Ry.  Co.,  U.  S.  v.  (unreported).  Van  Valkenburgh,  D.  J. 

CDC] 131,146,156 

Cleveland,  C.  C.  &  St.  L.  Ry.  Co.,  U.  S.  v.  (unreported),  HoUister,  D.  J.  [DC]. .        109, 

118,146,154 

Delaware,  L.  &  W.  R.  Co.,  U.  S.  v.  (unreported),  Hazel,  D.  J.  pC] 106, 112, 162 

Denver  &  R.  G.  R.  Co.,  U.  S.  v.  (197  Fed.,  629),  Pope,  D.  J.  [DC] 125, 

126,127,140,141,170,198 

Erie  R.  Co.,  People  of  New  York  v.  (91  N.  E.,  849),  Hiscock,  J.  [New  York], 
[reversed  in  233  U.  S.,  671] 107,189 

Brie  R.  Co.  v.  New  York  (233  U.  S.,  671),  McKenna,  Justice  [SC]  [reversing 
91N.  E.,  849] .- 187,189 

Oalveston,  H.  &  S.  A.  Ry.  Co.,  U.  S.  v.  (unreported),  Foster,  D.  J.  [DC].  169, 170, 215 

Grand  Rapids  &  I.  Ry.  Co.,  U.  S.  v.  (unreported).  Sessions,  D.  J.  [DC] 106, 149 

Grand  Trunk  Ry.  Co.,  U.  S.  v.  (unreported),  Aldrich,  D.  J.  [DC] 131 

Great  Northern  Ry.  Co.,  U.  S.  v.  (206  Fed.,  838),  Dietrich,  D.  J.  [DC] 

[affirmed  in  211  Fed.,  309] 106,120,132,134,135,136,137 

Great  Northern  Ry.  Co.  v.  U.  S.  (211  Fed.,  309),  Morrow,  C.  J.  [CCA-9]  [af- 
firming 206  Fed.,  838] 132,170 

Great  Northern  Ry.  Co.,  U.  S.  v.  (unreported),  Willard,  D.  J.  [DC]  [affirmed 
by  CCA-9;  unreported] * 119, 136, 168, 216 

Houston  B.  &  T.  Ry.  Co.,  U.  S.  v.  (205  Fed.,  344),  Foster,  D.  J.  [CCA-5]. . . .        116, 

124, 145, 146, 153, 158, 211 


HOURS  OF  SERVICE  ACT.  yyttt 


Pago. 

Illinois  Central  R.  Co.,  U.  S.  v.  (180  Fed.,  630),  Morris,  D.  J.  fDC] 109, 

125, 126, 127,  232 
Int.  Com.  Com.,  Baltimore  &  O.  R.  Co.  v.  (221  U.  S.,  612),  Hughes,  Justice 
[SC] 34,108,111,116,122,128,130,134,174 

Kansas  City  Southern  Ry.  Co.,  U.  S.  v.  (202  Fed.,  828),  Van  Valkenburgh, 

D.  J.  [CCA-3] 21, 106,  111,  114, 115, 116, 168, 169, 170, 172, 201,  211, 212, 213, 215 

Kansas  City  Southern  Ry.  Co.,  U.  S.  v.  (189  Fed.,  471),  Trieber,  D.  J.  [DC]. .        106, 

109, 116, 128, 160, 162, 163, 169, 170, 171,  211,  213,  215 

Minneapolis,  St.  P.  &  S.  S.  M.  Ry.  Co.,  U.  S.  v.  (unreported),  Amidon,  D.  J. 

[DC] 108,117,118,119,169,170 

Missouri,  K.  &  T.  Ry.  Co.  of  Texas  v.  U.  S.  (231  U.  S.,  112),  Hohnes,  Justice 

[SC] 116,118,119,125,128,138,139,140,141,169,170 

Missouri,  K.  &  T.  Ry.  Co  of  Texas,  U.  S.  v.  (unreported),  Russell,  D.  J.  [DC] 

[affirmed  in  231  U.  S.,  112] 169,170,215 

Missouri,  K.  &  T.  Ry.  Co.,  U.  S.  v.  (208  Fed.,  957),  Pollock,  D.  J.  [DC]..        107, 

143, 150, 153 
Missouri,  K.  &  T.  Ry.  Co.  et  al.,  U.  S.  v.  (unreported),  Pollock,  D.  J.  pC]. .  212 

Missouri  Pacific  Ry.  Co.  v.  XT.  S.  (211  Fed.,  893),  Carland,  C.  J.  [CCA-8]. ...         123, 

144, 156, 157 
Missouri  Pacific  Ry.  Co.,  U.  S.  v.  (unreported),  Van  Valkenburgh,  D.  J.  [DC] 

[reversed  in  211  Fed.,  893] 106,116,144,146,155,193 

Missouri  Pacific  Ry.  Co.,  U.  S.  v.  (206  Fed.,  847),  Pollock,  D.  J.  [DC] 106, 

122, 132, 135, 137, 195, 196 
Missouri  Pacific  Ry.  Co.,  U.  S.  r.  (213  Fed.,  169),  Sanborn,  C.  J.  [CCA-8]...  160,197 
Missouri  Pacific  Ry.  Co.,  State  v.  (Ill  S.  W.,  500),  Lamm,  J.  [Missouri]..        30, 

188, 189, 195 

New  York  v.  Erie  R.  Co.  (91  N.  E.,  849),  Hiscock,  J.  [New  York]  [reversed 

in  233  U.  S.,  671] 107,189 

New  York,  Erie  R.  Co.  v.  (233  U.  S.,  671),  McKenna,  Justice  [SC]  [91  N.  E., 

849  reversed] 187,189 

Northern  Pacific  Ry.  Co.  v.  State  of  Washington  (222  U.  S.,  370),  White,  Chief 

Justice  [SC],  [53  Wash.,  673  reversed] 129, 179, 187, 188 

Northern  Pacific  Ry.  Co.  v.  U.  S.  (213  Fed.,  162),  Sanborn,  C.  J.  [CCA-8]. 175, 194, 197 

Northern  Pacific  Ry.  Co.  v.  U.  S.  (213  Fed.,  577),  Ross,  C.  J.  [CCA-9] 134 

Northern  Pacific  Ry.  Co.,  U.  S.  v.  (213  Fed.,  539),  Rudkin,  D.  J.  [DC]. .  139, 170, 193 

Northern  Pacific  Ry.  Co.,  U.  S.  v.  (215  Fed.,  64),  Ross,  C.  J.  [CCA-9] 166 

Northern  Pacific  Ry.  Co.,  State  v.  (93  Pac,  945),  Brantly,  J.  [Montana] 188, 189 

Northern  Pacific  Ry.  Co.,  U.  S.  v,  (unreported),  Cushman,  D.  J.  [DC] 116, 

125, 128, 137, 139, 141, 142, 169, 170, 171, 202 

Oregon-W.  R.  &  N.  Co.,  U.  S.  v.  (213  Fed.,  688),  Rudkin,  D.  J.  [DC]. .  112, 113, 115, 116 
Oregon-W.  R.  &  N.  Co.,  U.  S.  v.  (unreported),  Rudkin,  D.  J.  [DC] 176 

People  V.  Erie  R.  Co.  (91  N.  E.,  849),  Hiscock,  J.  [New  York]  [reversed  in 
233U.  S.,  671] 107,189 

Ramsey,  U.  S. ».  (197  Fed.,  144),  Munger,  D.  J.  ICCA-«] 29, 109, 121 


XXIV  TABLES  OF  CASES. 


Page. 
St.  Louis  S.  W.  Ry.  Co.  of  Texas,  U.  S.  v.  (189  Fed.,  954),  Maxey,  D.  J.  [DC]..  21, 

109, 110, 116, 143, 150, 152, 193 
San  Pedro,  L.  A.  &  S.  L.  R.  Co.  v.  U.  S.  (213  Fed.,  326),  Hook,  C.  J,  [CCA-8].        106, 

116, 120, 122, 128, 130, 131 

Southern  Pacific  Co.,  U.  S.  v.  (209  Fed.,  562),  Carland,  C.  J.  [CCA-8] 106, 

109, 159, 168, 172 

Southern  Ry.  Co.,  U.  S.  v,  (unreported),  Smith,  D.  J.  [DC] 106, 163, 167 

State  V.  Chicago,  M.  &  St.  P.  Ry.  Co.  (117  N.  W.,  686),  Dodge,  J.  [Wiscon- 
sin]   109,116,122,129,186,188,189,197 

State  V.  Missouri  Pacific  Ry.  Co.  (Ill  S.  W.,  500),  Lamm,  J.  [ilissouri].  30, 188, 189, 195 

State  V.  Northern  Pacific  Ry.  Co.  (93  Pac,  945),  Brantly,  J.  [Montana] 188, 189 

State  V.  Texas  &  N.  O.  R.  Co.  (124  S.  W.,  984),  Pleasants,  Ch.  J.  [Texas]....  188, 189 

State  V.  Wabaeh  R.  Co.  (141  S.  W.,  646),  Woodson,  J.  [Missouri] 188, 189 

State,  Northern  Pacific  Ry.  Co.  v.  (222  U.  S.,  370),  White,  Chief  Justice  [SC] 
[53  Wash.,  673,  reversed] 129, 179, 187, 188 

Texas  &  N.  O.  R.  Co.,  State  v.  (124  S.  W.,  984),  Pleaaants,  Ch.  J.  [Texas]..  188, 189 

U.  S.,  Atchison,  T.  &  S.  F.  Ry.  Co.  v.  (177  Fed.,  115),  Landis,  D.  J.  [DC] 

[reversed  in  177  Fed.,  114  and  220  U.  S.,  37] 122, 131, 147, 150, 151 

U.  S.,  Atchison,  T.  &  S.  F.  Ry.  Co.  v.  (177  Fed.,  114),  Grosscup,  C.J.  [CCA-7] 

[reversing  177  Fed.,  115;  affirmed  in  220  U.  S.,37]. 150, 151, 152 

U.  S.  V.  Atchison,  T.  &  S.  F.  Ry.  Co.  (220  U.  S.,  37),  Hohnes,  Justice  [SC] 

[177  Fed.,  114,  affirmed;  177  Fed.,  115,  reversed] 140, 141, 143, 144, 149, 151 

U.  S.  v.  Atchison,  T.  &  S.  F.  Ry.  Co.  (212  Fed.,  1000),  Sawtelle,  D.  J.  [DC]. .         101, 

163, 165, 168, 170, 198 
U.  S.  V.  Atlantic  Coast  Line  R.  Co.  (211  Fed.,  897),  Knapp,  C.  J.  [CCA-4]. .         106, 

116, 144, 147, 148, 150, 158, 193 

U.  S.  V.  Boston  &  M.  R.  Co.  (unreported),  Aldrich,  D.  J.  [DC] 119, 128, 171 

U.  S.  V,  Chicago,  M.  &  P.  S.  Ry.  Co.  (195  Fed.,  783),  Hanford,  D.  J.  [DC]. .        113, 

125, 127, 175, 177, 194 
U.  S.  V.  Chicago,  M.  &  P.  S.  Ry.  Co.  (197  Fed.,  624),  Rudkin,  D.  J.  [DC]...         106, 

125, 132, 138, 139, 140, 141, 150, 170, 171, 181, 193 
U.  S.  V.  Chicago,  M.  &  St.  P.  Ry.  Co.  (212  Fed.,  574),  Sanborn,  D.  J.  [DC]. .  170 

U.  S.  V.  Chicago,  R.  I.  &  P.  Ry.  Co.  (unreported).  Van  Valkenburgh,  D.  J. 

[DC] , 131,146,156 

U.  S.  V.  Cleveland,  C.  C.  &  St.  L.  Ry.  Co.  (unreported)  Hollister,  D.  J.  [DC]. .        109, 

118, 145, 154 

U.  S.  V.  Delaware,  L.  &  W.  R.  Co.  (unreported),  Hazel,  D.  J.  [DC] 106, 112, 162 

U.  S.  V,  Denver  &  R.  G.  R.  Co.  (197  Fed.,  629),  Pope,  D.  J.  [DC] 125, 

126, 127, 140, 141, 170, 193 
U.  S.  V.  Galveston,  H.  &  S.  A.  Ry.  Co.  (unreported),  Foster,  D.  J.  [DC]..  169, 170, 215 

U.  S.  V.  Grand  Rapids  &  I.  Ry.  Co.  (unreported).  Sessions,  D.  J.  [DC] 106, 149 

U.  S.  V.  Grand  Trunk  Ry.  Co.  (unreported),  Aldrich,  D.  J.  [DC] '. 131 

U.  S.  V.  Great  Northern  Ry.  Co.  (206  Fed.,  838),  Dietrich,  D.  J.  [DC]  [affirmed 

in  211  Fed.,  309] 106, 120, 132, 134, 135, 136, 137 

U.  S.  V.  Great  Northern  Ry.  Co.  (unreported),  Willard,  D.  J.  [DC]  [affirmed 

byCCA-9;  unreported] 119,136,168,215 

U.  S.,  Great  Northern  Ry.  Co.  v.  (211  Fed.,  309),  Morrow,  C.  J.  [CCA-9] 

[affirming  206  Fed.,  838] 132,170 

U.  S.  V.  Houston  B.  &  T.  Ry.  Co.  (205  Fed.,  344),  Foster,  D.  J.  [CCA-5]....         116, 

124,145,146,153,158,211 


HOURS  OF  SERVICE  ACT.  xxv 


Page. 

U.  S.  V,  Illinois  Central  R.  Co.  (180  Fed.,  630),  Moms,  D.  J.  [DC] 109, 

125, 126, 127, 232 
U.  S.  V.  Kansas  City  Southern  Ry.  Co.  (189  Fed.,  471),  Trieber,  D.  J.  [DC]..        106, 

109, 116, 128, 160, 162, 163, 169, 170, 171, 211,  213, 215 
U.  S.  V.  Kansas  City  Southern  Ry.  Co.  (202  Fed.,  828),  Van  Valkenburgh, 

D.  J.  [CCA-8] 21, 106,  111,  114, 115, 116, 168, 169, 170, 172, 201,  211,  212,  213,  215 

U.  S.  V.  Minneapolis,  St.  P.  &  S.  S.  M.  Ry.  Co.  (unreported),  Amidon,  D.  J. 

PC] 108,117,118,119,169,170 

U.  S.  V.  Missouri,  K.  &  T.  Ry.  Co.  (208  Fed.,  957),  Pollock,  D.  J.  [DO] 107, 

143, 150, 153 
U.  S.  V.  Missouri,  K.  &  T.  Ry.  Co.  of  Texas  (unreported),  Russell,  D.  J.  [DC] 

[affirmed  in  231  U.  S.,  112] 169,170,215 

U.  S.  V.  Missouri,  K.  &  T.  Ry.  Co.  et  al.  (unreported).  Pollock,  D.  J.  [DC]. .  212 

U.  S.,  Missouri,  K.  &  T.  Ry.  Co.  of  Texas  v.  (231  U.  S.,  112),  Holmes,  Justice 

[SC] 116,118,119,125,128,138,139,140,141,169,170 

U.  S.  V.  Missouri  Pacific  Ry.  Co.  (206  Fed.,  847),  Pollock,  D.  J.  [DC] 106, 

122, 132, 135, 137, 196, 196 
U.  S.  V.  Missouri  Pacific  Ry.  Co.  (213  Fed.,  169),  Sanborn,  C.  J.  [COA-8]...  160,197 
U.  S.  V.  Missouri  Pacific  Ry.  Co.  (unreported).  Van  Valkenburgh,  D.  J.  [DC] 

[reversed  in  211  Fed.,  893] 106, 116, 144, 146, 155, 193 

U.  S.,  Missouri  Pacific  Ry.  Co.  v.  (211  Fed.,  893),  Carland,  C.  J.  [CCA-8]. . . .         123, 

144, 156, 157 
U.  S.  V.  Northern  Pacific  Ry.  Co.  (213  Fed.,  539),  Rudkin,  D.  J.  [DC]..  139, 170, 193 

U.  S.  V.  Northern  Pacific  Ry.  Co.  (215  Fed.,  64),  Ross,  C.  J.  [COA-9] 166 

U.  S.  V.  Northern  Pacific  Ry.  Co.  (unreported),  Cushman,  D.  J.  [DC] 116, 

125, 128, 137, 139, 141, 142, 169, 170, 171, 202 
U.  S.,  Northern  Pacific  Ry.  Co.  v.  (213  Fed.,  162)  Sanborn,  0.  J.  [COA-8]..         175, 

194, 197 

U.  S.,  Northern  Pacific  Ry.  Co.  v.  (213  Fed.,  577)  Ross,  0.  J.  [COA-9] 134 

TJ.  S.  V.  Oregon-W.  R.  &  N.  Co.  (unreported)  Rudkin,  D.  J.  [DC] 176 

U.  S.  V.  Oregon-W.  R.  &  N.  Co.  (213  Fed.,  688),  Rudkin,  D.  J.  [DC]- .  112, 113, 115, 116 

U.  S.  V.  Ramsey  (197  Fed.,  144),  Munger,  D.  J.  [COA-8] 29, 109, 121 

U.  S.  V.  St.  Louis  S.  W.  Ry.  Co.  of  Texas  (189  Fed.,  954),  Maxey,  D.  J.  [DO].  21, 

109, 110, 116, 143, 150, 152, 193 
U.  S.,  San  Pedro,  L.  A.  &  S.  L.  R.  Co.  v.  (213  Fed.,  326),  Hook,  0.  J.  [CCA-8]        106, 

116, 120, 122, 128, 130, 131 

U.  S.  V.  Southern  Pacific  Co.  (209  Fed.,  562)  Carland,  0.  J.  [COA-8] 106, 

109, 159, 168, 172 

U.  S.  V.  Southern  Ry.  Co.  (unreported).  Smith,  D.  J.  [DO] 106, 163, 167 

U.  S.  V.  Yazoo  &  M.  V.  R.  Co.  (203  Fed.,  159),  McCall,  D.  J.  [DO] 107, 

113,175,176,194,195,196 

Wabash  R.  Co.,  State  v.  (141  S.  W.,  646),  Woodson,  J.  [Missouri] 188,189 

Yazoo  &  M.  V.  R.  Co.,  U.  S.  v.  (203  Fed.,  159)  McCall,  D.  J.  [DO] 107, 

113, 175, 176, 194, 195, 196 

B. — ^Actions  for  Personal  Injury. 

Chicago,  M.  &  St.  P.  Ry.  Co.,  Schweig  v.  (205  Fed.,  96),  Willard,  D.  J.  [DC].         122, 

215,231 
Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.,  Osborne's  Adm'r.  v.  (164  S.  W.  818), 
Carroll,  J.  [Kentucky] 106, 126, 128, 136, 139, 170, 198, 231 


xxvT  TABLES  OF  CASES. 


Pags. 

Lloyd  V.  North  Carolina  R.  Co.  (66  S.  E.,  604)  Hoke,  J.  [North  Carolina]. ...  189 

McWhirter,  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  (140  S.  W.,  672),  Settle,  J.  [Ken- 
tucky] [reversed  in  229  U.  S.,  265] 107,109,113,222,226 

McWhirter,  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  (229  U.  S.,  265),  White,  Chief 
Justice  [SC]  [reversing  140  S.  W.,  672] 113, 226, 231 

North  Carolina  R.  Co.,  Lloyd  v.  (66  S.  E.,  604),  Hoke,  J.  [North  Carolma]. .  189 

Osborne's  Adm'r.  v.  Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.  (164  S.  W.,  818)  Car- 
roll, J.  [Kentucky] 106,126,128,136,139,170,198,231 

St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  McWhirter  (140  S.  W.,  672),  Settle,  J.  [Ken- 
tucky] [reversed  in  229  U.  S.,  265] 107,109,113,222,226 

St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  McWhui;er  (229  U.  S.,  265),  White,  Chief 

Justice  [SC]  [reversing  140  S.  W.,  672] 113,226,231 

Schweig  V.  Chicago,  M.  &  St.  P.  Ry.  Co.  (205  Fed.,  96),  Willard,  D.  J.  [DC]. .        122, 

215, 231 
O.— Miscellaneous  Cases. 

Black  V.  Charleston  &  W.  C.  Ry.  Co.  (69  S.  E.,  230),  Hydrick,  J.  [South 
Carolina] 120,163 

Charleston  &  W.  C.  Ry.  Co.,  Black  v.  (69  S.  E.,  230),  Hydrick,  J.  [South 
Carolina] 120,163 

Kansas  City  Southern  Ry.  Co.  v.  Quigley  (181  Fed.,  190),  Rogers,  D.  J.  [CC].         21T 

Magruder,  Washington,  P.  &  0.  Ry.  Co.  v.  (198  Fed.,  218),  Rose,  D.  J.  [DC].        152, 

169, 170 

Quigley,  Kansas  City  Southern  Ry.  Co.  v.  (181  Fed.,  190),  Rogers,  D.  J.  [CC].         217 

Washington,  P.  &  0.  Ry.  Co.  v.  Magruder  (198  Fed.,  218),  Rose,  D.  J.  [DC]. .        152, 

169, 170 
III.— COLLATERAL  CITATIONS; 

Adair  V.  U.  S.  (208  U.  S.,  161) 9.108 

American  R.  Co.  of  Porto  Rico  v.  Birch  (224  U.  S.,  547) 64 

American  Trans.  Co.,  Moore  v,  (24  How.,  1) 38 

Arkansas,  Hammond  Packing  Co.  v.  (212  U.  S.,  348) Ill 

Armour  Packing  Co.  v.  V.  S.  (153  Fed.,  1) Ill,  117 

Armour  Packing  Co.  v.  U.  S.  (209  U.  S.,  56) 111,117 

Armstrong  v.  U.  S.  (13  Wall.,  154) '. 219 

Atchison,  T.  &  S.  F.  Ry.  Co.,  U.  S.  v.  (166  Fed.,  160) 161,163,171 

Atchison,  T.  &  S.  F.  Ry.  Co.  v.  U.  S.  (178  Fed.,  12) 119 

Atlantic  Coast  Line  R.  Co.,  U.  S.  v.  (173  Fed.,  764) 119,161,162 

Bachtel  V.  Wilson  (204  U.  S.,  36) 218 

Bagley,  Railway  Co.  r.  (56  Pac,  759) 193 

Baltimore  &  O.  S.  W.  R.  Co.  v.  U.  S.  (220  U.  S.,  94) 118 

Barlow,  Whitney  Arms  Co.  v.  (63  N.  Y.,  62) 175 

Barry,  Brown  r.  (3  Dall.,  365) 197 


COLLATEEAL  CITATIONS.  xxvn 


Page. 

Bennett,  Gray  V.  (3  Met.,  522) 21 

Bevans,  U.  S.  v.  (3  Wheat,  336) 123,158 

Bidwell,  Downs  i;.  (182  U.  S.,258) 218 

Bidwell,  Mosle  v.  (130  Fed.,  334) 19T 

Binnsi;.  U.  S.  (194  U.  S.,  486) 196 

Birch,  American  R.  Co.  of  Porto  Rico  v.  (224  U.  S.,  547) 64 

Blake,  Northern  Pacific  R.  Co.  v.  (63  Fed.,  45) 228 

Bonnellv.  Griswold  (80  N.  Y.,  128) 175 

Boston*  A.  R.  Co.,  Carson  v.  (164  Mass.,  523) 38 

Boston  Safe  Deposit  &  T.  Co.  i;.  Hudson  (68  Fed.,  758) 2U 

Brady  v.  Kansas  City,  St.  L.  &  C.  R.  Co.  (102  S.  W.,  978) 73,230,232 

Brown  V.  Barry  (3  Dall. ,  365) 197 

Bucklew  V.  Central  Iowa  Ry.  Co.  (21  N.  W.,  103) 229 

Bullock  V.  White  Star  Steamship  Co.  (30  Wash.,  448) 163 

Buttfield  V.  Stranahan  (192  U.  S.,  470) 10 

Cahaw.  U.  S.  (152U.  S.,  211) 21» 

Caldwell  v.  North  Carolina  (187  U.  S.,  622) 184 

Campbell  v.  Lambert  (51  Am.,  ] ) 193 

Carson  v.  B.  &  A.  R.  Co.  (164  Mass.,  523) 38 

Carter,  Ryanv.  (93  U.  S.,  78) 211 

Carter  V.  Sioux  aty  Co.  (141  N.  W.,  26) 58 

Castles,  Welles  v.  (69  Mass.,  325) 162 

Central  Iowa  Ry.  Co.,  Bucklew  v.  (21  N.  W.,  103) 229 

Chaffee  r.  U.  S.  (18  Wall.,  516) 217 

Champlin,  Ins.  Co.  v.  (116  Fed.,  858) 193 

Chapman,  Fish  v.  (2  Ga.,  349) 161 

C.  &  0.  Ry.  Co.,  Powers  V.  (169  U.  S.,  92) 216 

Chicago  &  N.  W.  Ry.  Co.,  Pierson  v.  (102  N.  W.,  149) 73 

Chicago,  B.  &  Q.  Ry.  Co.  v.  McGuire  (219  U.  S.,  549) 109,135 

Chicago,  B.  &  Q.  Ry.  Co.  v.  U.  S.  (195  Fed.,  241) 211,212 

Chicago,  St.  L.  &  N.  0.  R.  Co.  v.  P.  S.  Car  Co.  (139  U.  S.,  79) 160 

Choctaw  0.  &  G.  R.  Co.  V.  McDade  (191  U.  S.,  64) 224 

City  of  New  York,  Sheean  t).  (75  N.  Y.  Supp.,  802) 159 

Clyde  et  al.  v.  Richmond  &  D.  R.  Co.  (59  Fed.,  394) 161 

Coe  v.  Errol  (116  U.  S.,  517) 180 

Cohens  v.  Virginia  (6  Wheat.,  264) 218 

Cold  Blast  Transp.  Co.  v.  Kansas  City  B.  &  N.  Co.  (114  Fed.,  77) 193 

Collard,  Jenkins  V.  (145  U.S.,  546) 219 

Conroy,  New  England  R.  Co.  v.  (175  U.  S.,  323) 219 

Cook,  State  ex.  rel.  v.  (171  Mo.,  357) 31 

Coy,  Turnpike  Co.  v.  (13  Ohio  St.,  84) 193 

Cox,  Crystal  Spring  Dist.  Co.  v.  (49  Fed.,  555) 162 

Crutcher  r.  Kentucky  (141  U.  S.,  47) 184 

Crystal  Spring  Dist.  Co.  v.  Cox  (49  Fed.,  555) 162 

Dacey  r.  Old  Colony  R.  Co.  (26  N.  E.,  437) 38,57 

Daniel  Ball,  The  (10  Wall.,  557) 180 

Danner,  Western  Gas  Co.  v.  (97  Fed.,  882) 210 

Davie  v.  Mining  Co.  (53  N.  W.,  625) 193 

Dearing,  F.  &  M.  Nat.  Bank  v.  (91  U.  S.,  29) 21 

Debs,  In  re  (158  U.  S.,  564) 187,191 

Denny  v.  New  York  Central  &  H.  R.  R.  Co.  (13  Gray.,  481) 119 

Detroit  Street  Ry.  v.  Mills  (85  Mich.,  634) 88 


xxvm  TABLES  OF  OASES. 


Page. 

Dickson,  U.  S.  D.  (15  Pet.,  141) 211,212,213 

Dinsmore  V.  Racine  M.  R.  Co.  (12  Wis.,  649) 29 

Dixon  V.  U.  S.  (1  Brock.,  177) 161 

Dobson  V.  Whisenhant  (8  S.  E.,  126) 210 

Doggettr.  R.  Co.  (99U.  S.,  72) 194 

Dollar  Savings  Bank  v.  V.  S.  (19  Wall.,  227) 211 

Downes  v.  Bidwell  (182  U.  S.,  244) 218 

Dreyer  v.  People  (58  N.  E.,  620) 162 

Duluth  S.  S.  &  A.  Ry.  Co.,  Morris  v.  (108  Fed.,  747) 73 

Ecker,  Tays  v.  (24  S.  W.,  954) 162 

EUisv.  U.  S.  (206U.  S.,  246) 172 

Elmore  v.  Seaboard  Air  Line  Ry.  Co.  (41  S.  E.,  786) 80, 227 

Errol,  Coe  v.  (116  U.  S.,  517) 180 

F.  &M.  Nat.  Bankr.  Bearing  (91  U.  S.,  29) 21 

First  Nat.  Bank  of  Anamoose  v.  U.  S.  (206  Fed.,  374) 123, 158 

Fish  V.  Chapman  (2  Ga.,  349) 161 

Fisher,  U.  S.  V.  (2  Cr.,  358) 194 

Fitzgerald  v.  Quann  (17  N.E.,  354) 197 

Flemister  V.  U.  S.  (207  U.  S.,    372) 119 

Florida,  Osbom  i;.  (164  U.  S.,  650) 184 

Four  Hundred  Twenty  Dollars,  11.8  1).  (162  Fed.,  803) 175 

Gibson  v.  Jinney  (15  Mass.,  205) 197 

Gila  Valley  Ry.  Co.  «.  Lyon  (203  U.  S.,  465) 210 

Gleeson  v.  Virginia  Midland  R.  R.  Co.  (140  U.  S.,  435) 162 

Gould  V.  New  York  Life  Ins.  Co.  (132  Fed.,  927) 211 

Gray  V.  Benrett  (3  Met.,  522) 21 

Grand  Trunk  Western  Ry.  Co.  v.  Poole  (93  N.  E.,  26) 26, 73, 74, 216, 226, 229, 230 

Green  Bay  &  Miss.  Canal  Co.,  Kaukauna  Water  Power  Co.  v.  (142  U.  S.,  254) . .  218 

Greenlee  v.  Southern  Ry.  Co.  (30  S.  E.,  115) 225,227 

Griswold,  Bonnell  v.  (80  N.  Y.,  128) 175 

Hale  v.  Henkel  (201  U.  S.,  43) Ill 

Hall,  Southern  Pacific  Co.  v.  (100  Fed.,  760) 210 

Hamilton  v.  Rathbone  (175  U.  S.,  414) 194 

Hammock  V.  Loan  &  Trust  Co.  (105  U.  S.,  77) 195 

Hammond  Packing  Co.  v.  Arkansas  (212  U.  S.,  322) Ill 

Hanley  v.  Kansas  City  Southern  Ry.  Co.  (187  U.  S.,  617) 35, 180 

Hanmore,  Pier  f.  (86  N.  Y.,  95) 175 

Hans  V.  Louisiana  (134  U.  S.,  1) 218 

Harriman  v.  Northern  Securities  Co.  (197  U.  S.,  244) 218 

Harrison  v.  Hughes  (125  Fed.,  860) 163 

Harvey,  Texas  &  Pacific  Ry.  Co.  v.  (228  U.  S.,  319) 229 

Harzburgv.  Southern  Ry.  Co.  (44  S.  E.,  75) 163 

Heath  v.  Wallace  (138  U.  S.,  573) 198 

Henkel,  Hale  V.  (201  U.  S.,  74) Ill 

Hennick,  Stoutenburgh  r.  (129  U.  S.,  141) 35 

Henry  County  v.  Salmon  (201  Mo.,  161) 31 

Hepner  v.  U.  S.  (213  U.  S.,  103) 215 

Holcomb,  McRae  v.  (46  Ark.,  306) 211 

Holy  Trinity  Church  r.  U.  S.  (143  U.  S.,  457) 196 

Hudson,  Boston  Safety  Deposit  &  T.  Co.  v.  (68  Fed.,  758) 211 

Hughes,  Harrison  v.  (125  Fed.,  860) 163 


COLLATERAL  CITATIONS.  xxix 


111.  T.  &  S.  Bank,  Magoun  v.  (170  U.  S.,  283) 109 

In  re  Debs  (158  U.  S.,  564) 187,191 

Jenkins  v.  Collard  (145  U.  S.,  546) 219 

Jinney,  Gibson  v.  (15  Mass.,  205) 197 

Johnson  v.  Mammoth  Vein  Coal  Co.  (114  S.  W.,  722) 7 

Jones  V.  U.  S.  (137  U.  S.,  202) 219 

Kansas  City  V.  Scarritt  (169  Mo.,  485) 31 

Kansas  C.  B.  &  N.  Co.,  Cold  Blast  Transp.  Co.  v.  (114  Fed.,  77) 193 

Kansas  City,  St.  L.  &  C.  R.  Co.,  Brady  v.  (102  S.  W.,  978) 73, 230, 232 

Kansas  City  Southern  Ry.  Co.,  Hanley  v.  (189  U.  S.,  617) 35, 180 

Kaukauna  Water  Power  Co.  v.  Green  Bay  &  Miss.  Canal  Co.  (142  U.  S.,  254)  218 

Kelly,  State  V.  (70  L.  R.  A.,  450) 46 

Kentucky,  Crutcher  i;.  (141  U.  S.,  47) 184 

Kimball,  Mobiles.  (102  U.  S.,  691) 187 

Kirby,  U.  S.  V.  (7  Wall.,  482) 197 

Knight  V.  U.  S.  Land  Ass'n.  (142  U.  S.  161) 219 

Knox  Co.  V.  Morton  (68  Fed.,  787) 194 

Lacher,  U.  S.  v.  (134  U.  S.,  624) 192, 195 

Lake  County  v.  Rollins  (130  U.  S.,  662) 194 

Lake  Superior  &  M.  R.  Co.  v.  U.  S.  (93  U.  S.,442)...: 29 

Lambert,  Campbell  v.  (51  Am.  1) 193 

Leavenworth,  etc.,  R.  Co.  v.  U.  S.  (92  U.  S.,  733) 211 

Lewis  V.  Pennsylvania  R.  Co.  (69  Atl.,  821) 232 

Loan  &  Trust  Co.,  Hammock  v.  (105  U.  S.,  77) 195 

Louisiana,  Hans  v.  (134  U.  S.,  1) 218 

Lyon,  Gila  Valley  R.  Co.  v.  (203  U.  S.,  465) 210 

McDade,  Choctaw  O.  &  G.  R.  Co.  v.  (191  U.  S.,  64) 224 

McGuire,  Chicago,  B.  &  Q.  Ry.  Co.  v.  (219  U.  S.,  549) 109, 135 

McRaev.  Holcomb  (46  Ark.,  306) 211 

Magoun  r.  111.  T.  &  S.  Bank  (170  U.  S.,  283) 109 

Majestic,  The  (166  U.S.,  375) 163 

Mammoth  Vein  Coal  Co.,  Johnson  v.  (114  S.  W.,  722) 7 

Mason  v.  Richmond  &  D.  R.  Co.  (16  S.  E.,  698) 227 

Massachusetts,  Plumley  v.  (155  U.  S.,  461) 218 

Matthews  v.  Patterson  (26  Pac,  812) 176 

Memphis  &  C.  R.  Co.  v.  Reeves  (10  Wall.,  176) 119 

Miller,  St.  Louis  Cordage  Co.  v.  (126  Fed.  495) 222 

Mills,  Detroit  Street  Ry.  v.  (85  Mich.,  634) 38 

Mining  Co.,  Davie  v.  (53  N.  W.,  625) 193 

Mobile  v.  Kimball  (102  U.  S.,  691) 187 

Moore  V.  American  Trans.  Co.  (24  How.,  1) 38 

Morris  v.  Duluth  S.  S.  &  A.  Ry.  Co.  (108  Fed.,  747) 73 

Morsman,  U.  S.  v.  (42  Fed.,  448) 184 

Morton,  Knox  Co.  v.  (68  Fed.,  787) 194 

Mosle  et  al.  v.  Bidwell  (130  Fed.,  334) 197 

New  England  R.  Co.  v.  Conroy  (175  U.  S.,  323) 219 

Newport  News  &  M.  V.  Co.  v.  U.  S.  (61  Fed.,  488) 161 

New  York  Central  &  H.  R.  R.  Co.,  Denny  v.  (13  Gray.,  481) ^ 119 

New  York  Central  &  H.  R.  R.  Co.  v.  U.  S.  (165  Fed.,  833) 211 

New  York  Life  Ins.  Co.,  Gould  v.  (132  Fed.,  927) 211 


XXX  TABLES  OF  CASES. 


Page. 

North  (3arolina,  Caldwell  v.  (187  U.  S.,  622) 184 

North  Carolina  R.  Co.  v.  Zachary  (232  U.S.,  248) 24, 44, 139, 181 

Northern  Bank  V.  Porter  Township  (110  U.  S.,  608) 218 

Northern  Pacific  R.  Co.  v.  Blake  (63  Fed.,  45) 228 

Northern  Securities  Co.,  Harriman  v.  (197  U.  S.,  244) 218 

Old  Colony  R.  Co.,  Dacey  v.  (26  N.  E.,  437) 38,57 

Olympia,  The  (61  Fed.,  120) 161 

Osbornv.  Florida  (164  U.  S.,  650) 184 

Patterson,  Matthews  v.  (26  Pac,  812) 175 

Pekoe,  Vogelv.  (42  N.E.,  386) 193 

Pennsylvania  R.  Co.,  Lewis  v.  (69  Atl.,  821) 232 

People,  Dreyer  v.  (58N.  E.,620) 162 

PeopletJ.  Spencer  (201  N.  Y.,  105) 119 

Phelps,  RaUway  Co.  V.  (137  U.  S.,  528) 194 

Pier  v.  Hanmore  (86  N.  Y.,  95) 175 

Piersonv.  Chicago&N.  W.  Ry.  Co.  (102N.W.,  149) 78 

Pittsburgh,  C.  C.  &  St.  L.  Ry.  Co.  v.  State  (87  N.  E.,  1034) 189 

Plumley  V.Massachusetts  (155  U.S.,  461) 218 

Poole,  Grand  Trunk  Western  Ry.  Co.  v.  (93  N.  E.,  26)....  26,73,74,216,226,229,230 

Porter  Township,  Northern  Bank  v.  (110  U.  S.,  608) 218 

Powersi;.  C.  &0.  Ry.  Co.  (169U.  S.,  92) 216 

P.  S.  Car  Co.,  Chicago,  St.  L.  &  N.  0.  R.  Co.  v.  (139  U.  S.,  79) 160 

Quann,  Fitzgerald  V.  (17  N.  E.,  354) 197 

Racine  M.  R.  Co.,  Dinsmore  v.  (12  Wis.,  649) 29 

Railway  Co.  v.  Bagley  (56  Pac,  759) 193 

Railway  Co.,  Doggett  v.  (99  U.  S.,  72) 194 

Railway  Co.,  Shaw  V.  (101  U.  S.,  557) 197 

Rathbone,  Hamilton  v.  (175  U.  S.,  414) 194 

Reeves,  Memphis  &  C.  R.  Co.  v.  (10  Wall.,  176) 119 

Richmond  &  D.  R.  Co.,  Clyde  v.  (59  Fed.,  394) 161 

Richmond  &  D.  R.  Co.,  Mason  v.  (16  S.  E.,  698) 227 

Rollins,  Lake  County  t?.  (130  U.  S.,  662) 194 

Romero  v.  U.  S.  (1  WalL,  721) 219 

RyanetaL  v.  Carter  et  aL  (93  U.  S.,  78) 211 

Ryan,  Woolsey  v.  (54  Pac,  664) 193 

Railway  Co.  v.  Sage  (71  Fed.,  40) 194 

St.  Joseph  Stock  Yards  Co.  v.  U.  S.  (187  Fed.,  104) 117 

St.  Louis  &  S.  F.  Ry.  Co.  v.  Scale  (229  U.  S.,  156) 183 

St.  Louis  &  S.  F.  Ry.  Co.  v.  V.  S.  (169  Fed.,  69) 117 

St.  Louis  Cordage  Co.  v.  Miller  (126  Fed.,  495) 222 

St.  Louis,  I.  M.  &  S.  R.  Co.  r.  State  (143  S.  W.,  913) 164 

St.  P.,  M.  &  M.  Ry.  Co.  v.  Phelps  (137  U.  S.,  528) 194 

St.  P.,  M.  &  M.  Ry.  Co.  v.  Sage  (71  Fed.,  40) 194 

Salmon,  Henry  County  i).  (201  Mo.,  161) 31 

San  Francisco  Bridge  Co.,  U.  S.  v.  (88  Fed.,  891) 114 

Scarritt,  Kansas  City  v.  (169  Mo.,  485) i 31 

Seaboard  Air  Line  Ry .  Co.,  Elmore  v.  (41  S.  E.,  786) 80, 227 

Scale,  St.  Louis&S.  F.  Ry.  Co. -y.  (229U.  S.,156) 183 

Shaw  V.  Railway  Co.  (101  U.  S.,  557) 197 

Sheean  v.  City  of  New  York  (75  N.  Y.  Supp. ,  802) 159 


COLLATEEAI  CITATIONS.  xxxi 


Page. 

I,  Swartsr.  (117  Fed.,  13) 194 

Sioux  City  Co.,  Carter  r.  (141  N.  W.,  26) ..,.        58 

Smith  i;.  Southern  Ry.  Co.  (40  S.  E.,  86) 162 

Smith,  Stensgaard  t;.  (44  N.  W.,  669) 193 

Southern  Indiana  Exp.  Co.  v.  U.  S.  Exp.  Co.  etal.  (88  Fed.,  659) 184 

Southern  Pacific  Co.  r.  Hall  (100  Fed.,  760) 210 

Southern  Pacific  Co.,  U.  S. -y.  (157  Fed.,  459) 161,170 

Southern  Ry.  Co.,  Greenlee  V.  (30  S.  E.,  115) 225,227 

Southern  Ry.  Co.,  Harzburg  v.  (44  S.  E.,  75) • 163 

Southern  Ry.  Co.,  Smiths.  (40  S.  E.,  86) 162 

Spencer,  People  V.  (201  N.  Y.,  105) 119 

Sprague  v.  Wisconsin  Central  Ry.  Co.  (116  N.  W.,  104) 229, 232 

State  ex  rel.  v.  Cook  (171  Mo.,  357) 31 

State,  Pittsburgh,  C,  C.  &  St.  L.  Ry.  Co.  v.  (87  N.  E.,  1034) 189 

State,  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  (143  S.  W.,  913) 164 

State  V.  Kelly  (70  L.  R.  A.,  450) 46 

Stensgaard  I'.  Smith  (44  N.  W.,  669) 193 

Stoutenburgh  v.  Hennick  (129  U.  S.,  141) 35 

Stowell,  U.  S.  V.  (133  U.  S.,  1) 21 

Stranahan,  Buttfield  v.  (192  U.  S.,  470) 10 

Swarts  V.  Siegel  (117  Fed. ,  13) 194 

Taylor  v.  U.  S.  (3  How.,  197) 21 

Tays-y.  Ecker(24S.  W.,954) 162 

Teschmaker,  U.  S.  v.  (22  How.,  392) 219 

Texas  &  Pacific  Ry.  Co.  v.  Hkrvey  (228  U.  S.,  319) 229 

The  Majestic  (166  U.  S.,  375) 163 

The  Olympia  (61  Fed.,  120) 161 

Trans-Missouri  Freight  Ass'n.,  U.  S.  v,  (166  U.  S.,  290) 198 

Turnpike  Co.  v.  Coy  (13  Ohio  St. ,  84) 193 

Union  Bridge  Co.  V.  U.  S.  (204  U.  S.,  364) 10 

Union  Central  Life  Ins.  Co.  v.  Champlin  et  al.  (116  Fed.,  858) 193 

Union  Pacific  R.  Co.,  U.  S.  v.  (169  Fed.,  65) 161 

U.  S.,  Adair  v.  (208  U.  S.,  161) 9,108 

U.  S.,  Armour  Packing  Co.  t>.  (153  Fed.,  1) 111,117 

U.  8.,  Armour  Packing  Co.  V.  (209  U.S.,  56) 111,117 

U.  S.,  Armstrong  i;.  (13  Wall.,  154) 219 

U.  S.  V.  Atchison,  T.  &  S.  F.  Ry.  Co.  (166  Fed.,  160) 161,163,171 

U.  S.,  Atchison,  T.  &  S.  F.  Ry.  Co.  v.  (178  Fed.,  12) 119 

U.  S.  u.  Atlantic  Coast  Line  R.  Co.  (173  Fed.,  764) 119,161,162 

U.  S.,  Baltimore  &  0.  S.  W.  R.  Co.  v.  (220  U.  S.,  94) 118 

U.  S.  V.  Bevane  (3  ^^lieat.,  336) 123,158 

U.  S.,  Binns  i;.  (194  U.  S.,  486) 196 

U.  S.,Cahav.  (152U.  S.,  211) 219 

U.  S.,  Chaffee  V.  (18  Wall.,  518) 217 

U.  S.,  Chicago,  B.  &  Q.  R.  Co.  v.  (195  Fed.,  241) 211, 212 

U.  B,v.  Dickson  (15  Pet.,  141) 211,212,213 

U.  S.,  Dixon  t'.  (1  Brock.,  177) 161 

U.S.,  Dollar  Savings  Bank  v.  (19  WalL,  227) 211 

U.  S.,  Ellis  i;.  (20G  U.  S.,  246) 172 

U.  S.  Exp.  Co.,  Southern  Indiana  Exp.  Co.  v.  (88  Fed.,  659) 184 

U.  S.,  First  Nat.  Bank  of  Anamoose  v.  (206  Fed.,  374) 123, 158 


TTTTT  TABLES  OF  CASES. 


Page. 

U.S.  V.  Fisher  (2  Cr.,  358) 194 

U.S.,  Flemisterv.  (207  U.  S.,  372) 119 

U.  S.  V.  Four  Hundred  Twenty  Dollars  (162  Fed.,  803) 175 

U.  S.,  Hepner  v.  (213  U.  S.,  114) 215 

U.  S.,  Holy  Trinity  Church  v.  (143  U.  S.,  457) 196 

U.  S.,  Jones  v.  (137  U.  S.,  202) 219 

U.  S.  v.  Kirby  (7  Wall.,  482) 197 

U.  S.,  L.  S.  &  M.  R.  Co.  v.  (93  U.  S.,  442) 29 

U.  S.  V.  Lacher  (134  U.  S.,  624) 192, 195 

U.  S.,  Leavenworth,  etc.,  R.  Co.  v.  (92  U.  S.,  733) 211 

U.  S. -y.  Morsman  (42  Fed.,  448) 184 

U.  S.,  Newport  News  &  M.  V.  Co.  v.  (61  Fed.,  488) 161 

U.  S.,  New  York  Central  &  H.  R.  R.  Co.  v.  (165  Fed.,  833). ^ 211 

U.S.,  Romero  v.  {I  Wall.,  721) 219 

U.  S.,  St.  Joseph  Stock  Yards  Co.  v.  (187  Fed.,  104) 117 

U.  S.,  St.  Louis  &  S.  F.  R.  Co.  v.  (169  Fed.,  69) 117 

U.  S.  V.  San  Francisco  Bridge  Co.  (88  Fed.,  891) 114 

U.  S.  V.  Southern  Pac.  Co.  (157  Fed.,  459) 161, 170 

U.  S.  v.  Stowell  (133  U.  S.,  1) 21 

U.  S.,  Taylor  i;.  (3  How.,  197) 21 

U.  S.  V.  Teschmaker  (22  How.,  392) 219 

U.  S.  v.  Trans-Missouri  Freight  Ass'n.  (166  U.  S.,  290) 198 

U.S.Union  Bridge  Co.  r.  (204  U.  S.,  364) 10 

U.  S.  v.  Union  Pacific  R.  Co.  (169  Fed.,  65) 161 

U.  S.,  Wilson  V.  (221  U.  S.,  361) : Ill 

U.  S.  V.  Wiltberger  (5  Wheat.,  76) 193 

U.  S. -y.  Wong  Kim  Ark  (169  U.  S.,  649) 218 

U.  S.  Land  Ass'n.,  Knight  i;.  (142  U.  S.,  161) 219 

Virginia,  Cohenfl  v.  (6  Wheat.,  264) 218 

V.  M.  R.  R.  Co.,  Gleeson  v.  (140  U.  S.,  435) 162 

Vogel  V.  Pekoe  (42  N.  E.,  386) 193 

Wallace,  Heath  v.  (138  U.  S.,  573) 198 

Watson's  Trial  (32  How.,  St.  Tr.,  125) 210 

Welles  V.  Castles  (69  Mass.,  325) 162 

Western  Gaa  Co.  v.  Danner  (97  Fed.,  882) 210 

Whisenhant,  Dobson  t>.  (8  S.  E.,  126) 210 

White  Star  Steamship  Co.,  Bullock  v.  (30  Waah.,  448) 163 

Whitney  Arms  Co. -y.  Barlow  (63  N.  Y.,  62) 175 

Wilson,  Bachtel  v.  (204  U.  S.,  36) 218 

Wilson  V.  U.  S.  (221  U.  S.,  361) Ill 

Wiltberger,  U.  S.  v.  (5  Wheat.,  76) 193 

Wisconsin  Central  Ry.  Co.,  Sprague  v.  (116  N.  W.,  104) 229, 232 

Wong  Kim  Ark,  U.  S.  V.  (169  U.  S.,  649) 218 

Woolsey  v,  Ryan  (54  Pac,  664) 193 

Zachary,  North  Carolina  R.  Co.  t>.  (232  U.  S .,  248) 24, 44, 139, 181 


A  DIGEST  OF  DECISIONS 

UNDER   THE 

FEDERAL  SAFETY  APPLIANCE  AND  HOURS  OF 
SERVICE  ACTS, 

With  references  to  or  excerpts  from  additional  cases  in  which  the  Acts 

have  been  construed;  Orders  and  Administrative  Rulings 

of  the  Interstate  Commerce  Commission. 


Part  I.  THE  SAFETY  APPLIANCE  ACTS. 

A.  NATURE  AND  PURPOSE  OF  THE  ACTS,  7; 

B.  CONSTRUCTION  AND  INTERPRETATION  OF  THE  ACTS,  9; 

C.  SCOPE  OF  THE  ACTS,  28; 

D.  POWER  DRIVING  WHEEL  BRAKES  AND  TRAIN  BRAKE  SYSTEMS,  66; 

E.  COUPLERS,  68; 

F.  GRAB  IRONS  OR  HANDHOLDS,  83; 

G.  STANDARD  HEIGHT  OF  DRAWBARS,  86; 
H.  HANDBRAKES,  89; 

I.  EXCEPTIONS  TO  THE  APPLICATIONS  OF  THE  ACTS,   90. 

A.  NATURE  AND  PURPOSE  OF  THE  ACTS. 

1.  The  Acts  are — 

(a)  Beneficent,  7; 

(b)  Civil,  7; 

(c)  Meritorious,  7; 

(d)  Penal,  7; 

(e)  Preventive,  7; 

(f)  Remedial,  7. 

2.  The  essential  purpose  of  the  Acts  is  the  protection  of  the  lives  and  limbs  ol 
employees  and  passengers,  7 : 

(a)  And  the  distribution  of  the  economic  loss  arising  from  accidents,  8; 

3.  The  purpose  of  the  Amendment  of  1903  was  to  enlarge  the  scope  of  the  original 
Act,  8. 

B.  CONSTRUCTION  AND  INTERPRETATION  OF  THE  ACTS. 
1.  The  Acts  are  constitutional,  9: 

(a)  The  delegation  to  the  Interstate  Commerce  Commission  and  the  American 
Railway  Association  of  authority  to  designate  the  standard  height  of  draw- 
bars is  not  unconstitutional,  10. 
, :     2.  The  Acts  impose  upon  the  carriers  subject  to  their  terms  an  absolute  and  un,- 
conditional  duty,  not  only,  in  the  first  instance,  to  provide  the  requisite  equip- 
ment, but,  at  all  times  thereafter  and  under  all  circumstances,  to  maintain 
appliances  in  a  condition  of  repair,  10: 

50611—15 1  1 


SA^ETX  APPLIANCE  ACTS. 


(ay.Jt)il^hc«*  in' th^  :dis:cQC'ery  and  repair  of  defects  is  not  a  defense  to  prose- 
cutions under  the  Acts,  13 ; 
(i)  But  the  exercise  of  such  diligence  on  the  part  of  carriers  will,  in  great 
measure,  obviate  occasion  for  prosecution,  14; 
■(b)  Prior  knowledge  on  the  part  of  carriers,  with  respect  to  the  existence  of 
defects,  is  not  an  element  of  violations  of  the  Acts,  14; 

(c)  A  willful  intention  on  the  part  of  carriers  to  disregard  the  Acts  is  not  an 
element  of  their  violation,  16; 

(d)  The  fact  that  it  may  be  inconvenient  for  a  carrier  to  observe  the  Acts  does 
not  excuse  their  violation,  16; 

(e)  The  absolute  duty  of  carriers  under  the  Acts  Is  not  to  be  evaded  by  assign- 
ment or  otherwise,  16 ; 

(i)  And  the  decision  of  a  conductor  as  to  the  disposition  of  a  defective  car  is, 
in  effect,  the  decision  of  the  carrier  by  which  he  is  employed,  16; 

(f)  A  carrier  is  liable  under  the  Acts  for  the  defective  condition  of  a  safety 
appliance,  even  though  the  deliberate  act  of  an  employee  may  have  rendered  it 
inoperative  or  inefficient,  17, 

(i)  But  no  violation  of  the  Acts  results  from  the  failure  of  an  employee  effi- 
ciently to  operate  equipment,  provided  such  equipment  is  actually  opera- 
tive, 17; 

(g)  Safety  appliances  designed  to  secure  compliance  with  the  Acts  must  be 
operative,  18. 

3.  Proceedings  on  behalf  of  the  Government  for  the  recovery  of  the  penalties  pro- 
vided by  the  Acts  are  civil  actions,  19: 

(a)  And  the  payment  to  the  United  States  of  the  penalties  recovered  does  not 
render  such  proceedings  criminal  actions,  20; 

(b)  An  action  in  the  nature  of  an  action  in  debt  is  appropriate  for  the  lecoveiy 
of  the  penalties  provided  by  the  Acts,  20. 

4.  The  Acts  are  to  be  construed  similarly  (a)  to  the  Customs  and  Bevenue 
Laws,  21; 

(b)  To  the  Hours  of  Service  Act,  21 ; 

(c)  And  to  the  Pure  Food  and  Drugs  Acts,  21. 

(d)  But  they  are  not  in  pari  materia  with  the  Act  to  regulate  commerce,  22; 

(e)  And  are  distinguishable,  in  their  construction,  from  the  Employers'  Liability 
Acts,  23. 

6.  Whatever  constitutes  a  violation  of  the  Acts  in  a  personal  action  for  damages  is 
likewise  a  violation  in  an  action  for  the  statutory  penalty,  24. 

6.  A  violation  of  the  Acts  resulting  in  personal  injury  entails  two  penalties — 
one  of  $100,  accruing  to  the  Government ;  the  other  to  the  employee  injured  by 
reason  thereof,  in  the  abrogation  of  the  defense  of  assumption  of  risk,  24. 

7.  In  a  prosecution  for  the  recovery  of  the  statutory  penalty  the  defendant  is  liable 
as  to  each  and  every  car  used  or  hauled  in  violation  of  the  Acts,  26. 

8.  In  a  prosecution  for  the  recovery  of  the  statutory  penalty  the  ownership  of  the 
cars  involved  is  immaterial,  and  the  defendant  is  liable  for  the  use  or  hauling 
of  a  foreign  car  in  violation  of  the  Acts,  26: 

(a)  But  a  carrier  need  not  accept  defective  cars  from  a  connecting  line,  27. 

9.  The  Amendment  of  1903  is  affirmative  and  declaratory  of  the  original  Act,  27. 

10.  A  custom  of  railroads  in  the  observance  of  practices  condemned  by  the  Acts 
does  not  excuse  their  violation,  27. 

11.  The  Standardization  Order  of  the  Interstate  Commerce  Commission,  made 
in  pursuance  of  the  Act  of  1910,  is  persuasive  as  to  the  meaning  of  the  statute,  28. 

12.  Defective  cars  may  be  hauled  on  flat  cars  properly  equipped,  28. 


SCOPE. 


C.  SCOPE  OF  THE  ACTS. 

1.  Provisions  of  the  Law,  28: 

(a)  "Railroad"  defined,  29; 

(b)  "Common  carrier"  defined,  29; 

(i)  Railroads  devoted  to  public  use  are  common  carriers,  29; 

2.  The  Acts  apply  to  railroads  generally  engaged  in  interstate  commerce,  30; 

(a)  And  courts  may  take  judicial  notice  of  the  fact  that  trunk  line  railroads  are 
generally  engaged  in  interstate  commerce,  80. 

3.  The  Acts  apply  to  intrastate  railway  companies  that  participate  in  the  move- 
ment of  interstate  traffic,  31 ; 

(a)  And  community  of  control,  management,  or  arrangement  with  other  carriers 
is  not  prerequisite  to  the  application  of  the  Acts  to  such  traffic,  33. 

4.  The  Acts  apply  to  interurban  electric  railway  companies  that  participate  in  the 
movement  of  interstate  traffic,  33. 

5.  A  car  hauled  or  used  by  one  carrier  over  the  lines  of  another,  under  a  contract 
or  trackage  agreement,  is  hauled  or  used  "on  the  line"-  of  the  operating  com- 
pany within  the  purview  of  the  Acts,  34. 

6.  The  Acts  apply  to  all  railroads  participating,  and  to  all  vehicles  hauled  or 
used,  in  the  movement  of  commerce  within  the  Territories  of  the  United 
States,  35, 

7.  The  Acts  apply  to  all  cars  containing  interstate  traffic,  35. 

8.  The  Acts  apply  to  all  cars  used  or  hauled  in  interstate  trains,  36: 

(a)  "Haul"  defined,  37; 

(b)  "Used"  defined,  37; 

(c)  The  term  "Used"  is  of  broader  significance  than  the  word  "hauled,"  38; 

(d)  "Train"  defined,  38. 

9.  The  Acts  apply  to  all  cars  used  or  hauled  in  connection  with  interstate  cars,  39; 
(a)  And  cars  so  hauled  or  used  in  connection  with  interstate  cars  need  not  be 

coupled  nor  contiguous  to  such  cars  in  order  to  come  within  the  purview  ol 
the  Acts,  40. 

10.  The  Acts  apply  to  any  car  the  movement  of  which  is  necessary  to  the  move- 
ment of  an  interstate  car,  40. 

11.  The  Acts  apply  to  all  cars  used  or  hauled  on  any  railroad  which  is  a  highway 
of  interstate  commerce,  41. 

12.  The  Acts  apply  to  all  cars  regularly  used  in  interstate  commerce,  42. 

13.  The  Acts  apply  to  empty  cars,  44; 

(a)  The  hauling  of  a  car  itself  is  commerce  within  the  purview  of  the  Acts,  45, 

14.  The  Acts  apply  to  all  cars  commercially  used  by  an  interstate  carrier,  46; 

(a)  And  cars  used  or  hauled  by  an  interstate  carrier  for  the  transportation  ol 
its  own  products  or  property  are  commercially  used  within  the  purview  of  the 
Acts,  45. 
16.  The  expression  "any  car",  as  used  in  the  Acts,  comprehends  all  cars  running 

on  the  rails,  46: 

(a)  Locomotives,  48: 

(i)  The  locomotive  at  the  head  of  a  freight  train  is  a  "freight  car"  within 
the  purview  of  the  Acts,  46; 

(b)  Locomotive  tenders,  47; 

(c)  Shovel  cars,  47 ; 

(d)  Caboose  cars,  47; 

(e)  PA333ii2;5r  cirs,  47; 

(f)  rxining  cars,  48. 

16.  Cars  to  which  the  Acts  apply  are  subject  to  their  terms  even  while  such  ve- 
hicles are  bsin^  moved  within  the  boundaries  of  a  single  State,  48. 


SAFETY  APPLIANCE  ACTS. 


17.  The  Acts  apply  no  less  to  inter-yard  or  switching  movements  than  to  main- 
line operations,  49; 

(a)  The  distance  a  defective  car  is  hauled  in  violation  of  the  Acts  is  imma- 
terial, 62. 

18.  The  Acts  impose  upon  all  carriers  subject  to  their  terms  an  obligation  to  main- 
tain repair  points  at  suitable  intervals  along  their  lines  of  railroad,  and  to  provide 
at  such  points  such  appropriate  material  and  facilities  for  repair  as  will  enable 
them  to  comply  with  the  requirements  of  the  statute,  63. 

'    19.  The  Acts  extend  to  the  Island  of  Porto  Rico,  64. 

D.  POWER  DRIVING-WHEEL  BRAKES  AND  TRAIN-BRAKE  SYSTEMS. 

1.  Provisions  of  the  Law,  65: 

(a)  "Associated,"  as  used  in  section  2  of  the  Act  of  1903,  defined,  66. 

2.  In  computing  the  percentage  of  operative  air-brake  equipment  in  any  given  train, 
the  engine  and  tender  are  to  be  counted  as  two  cars,  66. 

3.  The  Acts  do  not  directly  prohibit  the  use  of  individual  cars  on  which  the  air 
brakes  have  been  "cut  out"  66. 

4.  In  the  absence  of  evidence  of  insufficient  air-brake  equipment,  the  use  of  hand 
brakes,  not  to  control  the  speed  of  a  train  but  to  insure  the  safety  of  its  move- 
ments, is  not  a  violation  of  the  Acts,  66. 

6.  The  requirement  of    efficient  air-brake   equipment   presupposes    that    such 

equipment  shall  be  inspected  at  terminals.  67. 
6.  The  air-brake  provisions  of  the  Acts  apply  no  less  to  inter-yard  or  switching 

movements  than  to  main-line  operations,  49,  63. 

E.  COUPLERS. 

1.  Provisions  of  the  Law,  68: 

2.  The  provision  of  the  Act  of  1893  that  couplers  shall  be  operative  "without  the 
necessity  of  men  going  between  the  ends  of  the  cars"  applies  to  coupling  as  well 
as  to  uncoupling  operations,  68. 

3.  The  Acts  require  that  couplers  shall  be  operative  on  both  ends  of  cars,  69; 

(a)  But  the  Acts  do  not  require  automatic  couplers  between  engines  and  tend- 
ers, 70. 

4.  The  Acts  require  that  couplers  shall  be  operative  in  an  ordinary  and  reasonable 
manner,  70; 

(a)  And  repeated  unsuccessful  efforts  to  operate  a  coupler  in  an  ordinary  and 
reasonable  manner  afford  some  evidence  that  it  is  defective,  71. 

5.  The  Acts  require  that  the  couplers  actually  used  or  attempted  to  be  used  at  any 
given  time  shall  be  operative  of  their  own  mechanism,  71; 

(a)  But  if  a  coupler  is  in  fact  defective,  it  is  not  necessary  that  it  shall  be  actually 
used  or  attempted  to  be  used  in  order  to  constitute  a  violation  of  the  Acts,  71 ; 

6.  The  Acts  do  not  contemplate  that  employees  shall  be  required  to  go  around, 

over,  or  under  cars  in  order  to  operate  couplers  by  means  of  the  levers  on  the 
opposite  sides  of  adjacent  cars,  72. 

7.  The  preparation  of  a  coupler  for  impact  is  a  part  of  the  coupling  operation  within 
the  purview  of  the  Acts,  74 ; 

(a)  But  the  coupling  of  air  hose  between  cars  is  no  part  of  such  coupling  oper- 
ation, 74. 

8.  The  Acts  prohibit  the  use  of  a  coupler  operative  only  by  means  of  a  chain  con- 
necting with  the  platform  handrail,  74. 

9.  The  Acts  prohibit  the  use  of  couplers  which  will  not  couple  automatically  by 
impact  when  cars  are  brought  together  75 : 

(a)  By  reason  of  a  clevis  pin  having  been  removed,  75 ; 
(i)  And  the  fact  that  a  pin  is  missing  from  a  coupler  at  the  termination  of  a 
given  trip  affords  some  evidence  that  the  coupler  was  defective  at  the  com- 
mencement of  the  journey,  76: 


COUPLERS— GRAB  IRONS  OR  HANDHOLDS. 


(b)  By  reason  of  being  worn  out,  76 ; 

(c)  By  reason  of  an  uncoupling  chain  being  kinked  in  the  coupler  head,  76; 

(d)  By  reason  of  the  curvature  of  the  track  on  which  the  cars  in  question  are 
attempted  to  be  coupled,  77 ; 

(e)  By  reason  of  the  cars  to  which  they  are  attached  being  so  laden  with  lumber 
or  other  material  projecting  beyond  their  ends  as  to  preclude  the  automatic 
operation  of  such  couplers,  78; 

(f)  The  Acts  prohibit  the  use  of  a  car  on  which  a  coupler  is  inoperative  even 
though  the  defect  may  be  so  obvious  that  no  reasonably  prudent  employee 
would  attempt  to  use  such  coupler,  79. 

10.  The  use  of  a  car  on  which  a  coupler  is  inoperative  is  the  same  in  legal  effect 
as  if  such  car  had  never  been  equipped  with  automatic  couplers,  80. 

11.  A  carrier  is  liable  under  the  Acts  for  the  failure  of  an  employee  to  connect  an 
uncoupling  chain  as  well  as  for  allowing  such  a  chain  to  become  disconnected, 
80. 

12.  The  Acts,  while  permitting  such  equipment,  do  not  require  that  cars  shall  be 
equipped  with  double  levers,  81; 

(a)  But  if  double  levers  are  provided,  the  Acts  require  that  they  shall  be  opera- 
tive from  either  side  of  the  cars  to  which  they  are  attached,  82. 

13.  The  operation  of  automatic  couplers  is  a  proper  subject  for  expert  testimony,  209. 
(a)  The  exhibition  of  model  couplers  to  the  jury,  merely  for  the  purpose  of  illus- 
trating particular  defects,  is  permissible,  210. 

14.  Congress,  in  drafting  the  Acts,  took  cognizance  of  the  mechanical  difficulties 
incident  to  the  interchange  of  couplers,  82. 

15.  The  use  by  a  railroad  company  of  a  switch  engine  having  no  uncoupling 
levers  does  not  constitute  a  violation  of  the  Acts  unless  it  is  shown  that  such 
levers  are  necessary  to  enable  the  engine  to  be  coupled  automatically  by  impact 
and  to  be  uncoupled  without  the  necessity  of  men  going  between  such  engine 
and  the  vehicle  from  which  it  is  to  be  uncoupled,  82. 

F.  GRAB  IRONS  OB  HANDHOLDS. 

1.  Provisions  of  the  Law,  83. 

2.  The  purpose  of  handholds  is  to  secure  the  safety  of  man  engaged  in  coupling 
and  uncoupling  cars,  83. 

3.  Handholds  are  required  in  the  ends  and  sides  of  all  cars  to  which  the  Acts 
apply,  84; 

(a)  And  the  maintenance  of  only  one  handhold  on  each  side  of  a  car  is  not  a 
compliance  with  the  Acts,  84. 

4.  Any  reasonable  substitute  for  a  handhold  is  a  handhold  within  the  purview  of 
the  Acts,  85; 

(a)  But  the  necessity  of  handholds  on  passenger  equipment  is  not  obviated  by 
the  presence  thereon  of  air,  steam,  or  signal  hose,  coupling  chains,  hand- 
brake shafts,  or  other  appliances  affording  some  measure  of  security  to 
employees  while  coupling  and  uncoupling  cars,  85. 

(b)  And  the  necessity  of  handholds  in  the  sides  near  the  rear  ends  of  tenders  is 
not  obviated  by  the  fact  that  uncoupling  levers  extend  practically  across  the 
rear  ends  thereof,  in  such  a  position  and  of  such  a  character  as  to  serve  as 
handholds,  unless  it  is  shown  that  handholds,  if  applied,  would  not  con- 
tribute to  the  greater  security  of  employees  in  coupling  and  uncoupling  cars,  86; 

(c)  The  determiiiation  of  what  is,  and  what  is  not,  a  handhold  within  the  pur- 
view of  the  Acts  is  within  the  province  of  the  jury,  208 ; 

(i)  The  competency  of  openings  in  the  buffers  on  the  ends  of  cars,  as  substi- 
tutes for  handholds,  is  not  a  proper  subject  for  expert  testimony,  where  such 
openings  are  subject  to  the  personal  inspection  of  the  jury,  209. 


6  SAFETY  APPLIANCE  ACTS. 


G.  STANDARD  HEIGHT  OF  DRAWBAKS. 

1.  Provisions  of  the  Law,  86. 

2.  Standard  height  of  drawbars,  86; 
(a)  "Shims"  defined,  87. 

3.  The  Acts  prohibit  the  use  of  a  coupler  the  drawbar  of  which  is  lower  than  the 
standard  height,  even  though  such  coupler  is  on  the  front  end  of  a  locomotive 
and  is  not  used  after  an  attempt  to  use  it  has  been  unsuccessful,  87. 

4.  If  a  drawbar  is  lower  than  the  standard  height,  it  is  immaterial  whether  such 
condition  results  from  the  sagging  of  the  drawbar  from  the  frame  or  from  the 
sagging  of  the  entire  frame,  89. 

5.  The  delegation  to  the  Interstate  Commerce  Commission  and  the  American 
Railway  Association  of  authority  to  designate  the  standard  height  of  drawbars 
is  not  unconstitutional,  10. 

H.  HAND  BRAKES. 

1.  Provisions  of  the  Law,  89, 

2.  "Efficient,"  as  used  in  the  second  section  of  the  Act  of  1910,  defined,  90. 
I.  EXCEPTIONS  TO  THE  APPLICATION  OF  THE  ACTS. 

1.  Provisos  in  the  Acts,  90 ; 

(a)  "Necessary,"  as  used  in  the  proviso  in  the  Amendment  of  1910,  defined, 
91; 

(b)  "Nearest  available  point,"  as  used  in  the  proviso  in  the  Amendment  of 
1910,  defined,  92. 

2.  The  Acts,  as  amended  prior  to  April  14,  1910,  permitted  the  necessary  move- 

ment of  defective  cars  to  the  nearest  point  at  which  repairs  might  be  effected, 

provided  they  were  excluded  from  commercial  use  and  dissociated  from  other 

cars  commercially  employed,  92; 
(a)  But  it  was  never  intended  by  the  Acts  that  a  defective  car  should  be  removed 

from  a  repair  point  without  repairs  of  statutory  defects  being  made,  95 ; 

(i)  Nor  that  a  carrier  should  excuse  a  failure  to  repair  a  statutory  defect  at  the 
point  of  its  discovery  by  showing  that  the  car  involved  was  also  defective 
in  other  respects  which  could  have  been  repaired  only  at  the  point  to  which 
the  car  was  moved,  97. 

3.  The  proviso  in  the  Amendment  of  1910  is  declaratory  of  the  judicial  interpre- 
tation placed  upon  the  Acts  as  previously  amended,  97. 

4.  A  defendant  carrier  must  bring  itself  strictly  within  the  terms  of  the  proviso 
in  order  to  avail  itself  of  the  immunity  thereby  afforded,  212. 

6.  In  order  to  bring  itself  within  the  terms  of  the  proviso  in  the  Act  of  April  14, 
1910,  a  carrier  seeking  to  justify  the  movement  of  a  defective  car  to  a  particular 
point: 

(a)  Must  establish  the  necessity  of  the  movement  alleged  to  have  been  made 
for  the  purpose  of  repair,  98 ; 

(b)  And  must  show  that  the  defect  to  be  repaired  was  of  such  a  nature  that  it 
could  not  have  been  repaired  at  the  point  of  its  discovery,  100. 

(c)  The  necessity  of  a  movement  for  the  purpose  of  repair  is  generally  a  question 
for  the  jury,  100; 

6.  The  proviso  in  the  Act  of  1910  does  not  permit  the  hauling  of  defective  cars 
by  means  of  chains  instead  of  drawbars  in  revenue  trains  or  in  association 
with  other  cars  commercially  used  unless  such  defective  cars  contain  live 
stock  or  perishable  freight,  100. 

7.  The  proviso  in  the  Act  of  1910  has  no  retrospective  application  to  a  violation  of 
the  Acts  as  previously  amended,  101. 


NATURE  AND  PURPOSE. 


A.  NATURE  AND  PURPOSE  OF  THE  ACTS. 

1.  The  Acts  are — 

— (a).  Beneficent: 

VoelJcer  v.  Chicago,  M.  S  St.  P.  Ry,  Co.,  116  Fed.,  867;  U.  S.  v. 
Chicago  Great  Western  Ry.  Co.,  162  Fed.,  775;  Erie  R.  Co,  v. 
U.  S.,  197  Fed.,  287;  Johnson  v.  Mammoth  Vein  Coal  Co.,  114 
S.  W.,  722;  Lulcen  v.  Lalce  Shore  cfe  M.  S.  Ry.  Co.,  154  111.  App., 
550.  See  also  Lalce  Shore  <Sg  M.  S.  Ry.  Co.  v.  Benson,  97  N.  E.,  417. 

—(b).  Civil:  See  Item  B-3,  p.  19,  post, 

— (c).  Meritorions: 

U.  S.  y.  Southern  Ry.  Co.,  135  Fed.,  122. 

District  Court,  Southern  District  of  Illinois,  March  2,  1905. 

The  Act  is  so  highly  meritorious,  so  generous  in  its  purposes, 

so  in  harmony  with  the  best  sentiment  of  a  humane  people  and  a 

progressive  government  that  it  appeals  strongly  to  the  courts  for 

its  prompt  and  vigorous  enforcement. — Humphrey,  D.  J.,  p.  129. 

—(d).  Penal: 

Johnson  V.  Southern  Pacific  Co.,  117  Fed.,  462;  U.  S.  v.  Southern 
Ry.  Co.,  135  Fed.,  122;  Z7.  S.  v.  Chicago,  M.  cfc  St.  P.  Ry.  Co., 
149  Fed.,  486;  V.  S.  v.  Atchison,  T.  &  S.  F.  Ry.  Co.,  150  Fed., 
442;  TJ.  S.  v.  Philadelphia  <&  R.  Ry.  Co.,  160  Fed.  696;  Atlantic 
Coast  Line  R.  Co.  v.  U.  S.,  168  Fed.,  175;  U.  S.  v.  Chicago, 
R.  I.  dc  P.  Ry.  Co.,  173  Fed.,  684;  V.  S.  v.  Oregon  Short  Line 
R.  Co.,  180  Fed.,  483;  V.  S.  v.  St.  Louis  S.  W.  Ry.  Co.  of  Texas, 
184  Fed.,  28;  V.  S.  v.  Lehigh  Valley  R.  Co.,  D.  C,  E.  D. 
Pennsylvania,  Mar.  17,  1908,  McPherson,  D.  J.  [unreported]; 
TJ.  S.  V.  Pennsylvania  R.  Co.,  D.  C,  E.  D.  Pennsvlvania,  Mar. 
18,  1908,  McPherson,  D.  J.  [unreported]. 

— (e).  Preventive: 

V.  S.  V.  Chicago,  R.  1.  cfc  P,  Ry.  Co,,  173  Fed.,  684. 

— (f).  Remedial: 

Johnson  v.  Southern  Pacific  Co.,  196  U.  S.,  1;  U.  S.  v.  Chicago, 
M.  &  St.  P.  Ry.  Co.,  149  Fed.,  486;  V.  S.  v.  Central  of  Georgia 
Ry.  Co.,  157  Fed.,  893;  TJ.  S.  v.  Southern  Ry.  Co.,  170  Fed., 
1014;  TJ.  S.  V.  Chicago,  R.  L  c£?  P.  Ry.  Co.,  173  Fed.,  684;  Grayy. 
Louisville  <&  N.  R.Co.,  197  Fed.,  874;  Snyder  v.  Southern  Ry. 
Co.,  C.  C,  E.  D.  Tennessee,  Jan.  21,  1910,  Sanford,  D.  J. 
[unreported]. 

2.  The  essential  purpose  of  the  Acts  is  the  protection  of  the  lives  and 
limbs  of  employees  and  passengers; 

VoelJcer  v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  116  Fed.,  867. 

Circuit  Court,  Northern  District  of  Iowa,  June  16,  1902. 

The    statutes,  state    and   federal,  requiring   railway  com- 
panies to  equip  their  cars  with  automatic  couplers,  were  not 


SAFETY  APPLIANCE  ACTS. 


enacted  to  protect  the  freight  transported  therein,  but  for  the 
protection  of  the  life  and  limb  of  the  employees  who  were  ex- 
pected to  handle  these  cars. — Shiras,  D.  J.,  p.  873. 
V.  S.  V.   Chicago  Great  Western  By.  Co.,    162  Fed.,   775. 
District  Court,  Northern  District  of  Iowa,  May  6,  1908. 

This  law,  gentlemen,  is  a  benficent  one,  and  is  intended  to 

Erotect  the  public  generally,  and  persons  and  propert}'  that  are 
eing  transported  by  railroads,  and  particularly  is  it  intended  to 
protect  the  life  and  limbs  of  employees  engaged  in  the  dangerous 
and  hazardous  business  of  operating  railroad  trains,  and  railroad 
companies  engaged  in  such  commerce  are  required  to  strictly 
comply  with  its  provisions  and  obey  this  law. — Eeed,  D.  J.,  p.  778. 
Z7.  8.  V.  Atlantic  Coast  Line  R.  Co.,  214  Fed.,  498;  La  Mere  v.  Ry. 
Trans.  Co.  of  Minneapolis,  145  N.  W.,  1068. 

— (a).  And  the  distribution  of  the  economic  loss  arising  from  accidents; 
St.  Louis,  L  M.  db  S.  Ry.  Co.  v.  Taylor,  210  U.  S.,  281. 
Supreme  Court,  May  18,  1908. 

It  is  quite  conceivable  that  Congress,  contemplating  the 
inevitable  hardship  of  such  injiu-ies,  and  hoping  to  diminish  the 
economic  loss  to  the  community  resulting  from  them,  should 
deem  it  wise  to  impose  their  biu-dens  upon  those  who  could  meas- 
urably control  their  causes,  instead  of  upon  those  who  are  in  the 
main  helpless  in  that  regard. — Moody,  Justice,  pp.  295-296. 
Brinkmeier  v.  Missouri  Pacific  Ry.  Co.,  105  Pac,  221. 

3.  The  purpose  of  the  Amendment  of  1903  was  to  enlarge  the  scope  of 
the  original  Act. 

Chicago  (&  N.  W.  Ry.  Co.  v.  U.S.,  168  Fed.,  236. 

(Srcuit  Court  of  Appeals,  8th  Circuit,  March  10,  1909. 

The  amendment  of  1903,  32  Stat.,  943,  had  three  objects: 
First,  to  extend  the  Safety  Appliance  Act  to  traffic  in  the  District 
of  Columbia  and  the  Territories ;  second,  to  remove  the  doubt  as 
to  the  meaning  of  the  term  ''cars"  as  used  in  the  Act,  created 
by  the  decision  of  this  court  in  the  Johnson  Case,  117  Fed. 
462 ;  third,  to  enlarge  the  scope  of  the  Safety  Appliance  Act,  so  as 
to  include  not  only  ''  the  cars,  locomotives,  tenders,  and  similar 
vehicles,''  etc.,  therein  referred  to,  but  also  to  embrace  "all  other 
locomotives,  tenders,  cars  and  similar  vehicles  used  in  connection 
therewith." — Amidon,  D.  J.,  p.  237. 

Southern  Ry.  Co.  v.  Crockett,  234  U.  S.,  725.  See  also  Southern  Ry. 
Co.  V.  V.  S.,  222  U.  S.,  20;  U.  S.  v.  Chicago  &  N.  W.  Ry.  Co., 
157  Fed.,  616. 


CONSTRUCTION  AND  INTERPRETATION. 


B.  CONSTRUCTION  AND  INTERPRETATION  OF  THE  ACTS. 

1.  The  Acts  are  constitutional: 

Adair  Y.  U.  S.,20SV.  S.,  161. 

Supreme  Court,  January  27,  1908. 

In  this  connection  we  may  refer  to  Johnson  v.  Railroad ^ 
196  U.  S.,  1,  relied  on  in  argument,  which  case  arose  under 
the  Act  of  Congress  of  March  2,  1893  [27  Stat.,  531,  c.  196]. 
That  Act  required  carriers  engaged  in  interstate  commerce  to 
equip  their  cars  used  in  such  commerce  with  automatic  couplers 
and  continuous  brakes,  and  their  locomotives  with  driving- 
wheel  brakes.  But  the  Act  upon  its  face  showed  that  its  object 
was  to  promote  the  safety  of  employees  and  travelers  upon  rail- 
roads; and  this  court  sustained  its  validity  upon  the  ground 
that  it  manifestly  had  reference  to  interstate  commerce  and  was 
calculated  to  subserve  the  interests  of  such  commerce  by  afford- 
ing protection  to  employees  and  travelers.  It  was  held  that 
there  was  a  substantial  connection  between  the  object  sought  to 
be  attained  by  the  Act  and  the  means  provided  to  accomplish 
that  object. — Harlan,  Justice,  p.  177. 

Southern  By.  Co.  v.  U.  S.,  222  U.  S.,  20. 
Supreme  Court,  October  30,  1911. 

We  come  then  to  the  question  whether  these  Acts  are  within 
the  power  of  Congress  under  the  commerce  clause  of  the  Consti- 
tution, considering  that  they  are  not  confined  to  vehicles  used 
in  moving  interstate  traffic,  but  embrace  vehicles  used  in  moving 
intrastate  traffic.  The  answer  to  this  question  depends  upon 
another,  which  is:  Is  there  a  real  or  substantial  relation  or  con- 
nection between  what  is  required  by  these  Acts  in  respect  of 
vehicles  used  in  moving  intrastate  traffic  and  the  object  which 
the  Acts  obviously  are  designed  to  attain,  namely,  the  safety  of 
interstate  commerce  and  of  those  who  are  employed  in  its  move- 
ment? Or,  stating  it  in  another  way:  Is  there  such  a  close  or 
direct  relation  or  connection  between  the  two  classes  of  traffic, 
when  moving  over  the  same  railroad,  as  to  make  it  certain  that 
the  safety  of  the  interstate  traffic  and  of  those  who  are  employed 
in  its  movement  will  be  promoted  in  a  real  or  substantial  sense  by 
applying  the  requirements  of  these  Acts  to  vehicles  used  in 
moving  the  traffic  which  is  intrastate  as  well  as  to  those  used  in 
moving  that  which  is  interstate  ?  If  the  answer  to  this  question, 
as  doubly  stated,  be  in  the  affirmative,  then  the  principal  ques- 
tion must  be  answered  in  the  same  way.  And  this  is  so,  not 
because  Congress  possesses  any  power  to  regulate  intrastate  com- 
merce, as  such,  but  because  its  power  to  regulate  interstate  com- 
merce is  plenary  and  competently  may  be  exerted  to  secure  the 
safety  of  the  persons  and  property  transported  therein  and  of 
those  who  are  employed  in  such  transportation,  no  matter  what 
may  be  the  source  of  the  dangers  which  threaten  it.  That  is  to 
say,  it  is  no  objection  to  such  an  exertion  of  this  power  that  the 
dangers  intended  to  be  avoided  arise,  in  whole  or  in  part,  out  of 
matters  connected  with  intrastate  commerce.     *     *     *     These 


10  SAFETY  APPLIANCE  ACTS. 


practical  considerations  make  it  plain,  as  we  think,  that  the  ques- 
tions before  stated  must  be  answered  in  the  affirmative. —  Van  De- 
vanter,  Justice,  pp.  26-27. 
'Chicago  Junction  Ry.  Go.  v.  King,  222  U.  S.,  222;  Plummer  v. 
Northern  Paaific  Ry.  Co.,  152  Fed.,  206;  Kelley  v.  Great  North- 
ern Ry.  Co.,  152  Fed.,  211;  U.  S.  v.  Atlantic  Goast  Line 
R.  Co.,  153  Fed.,  918;  U.  S.  v.  Southern  Ry.  Co.,  164  Fed.,  347; 
V.  S.  V.  Wheeling  <&  L.  E.  R.  Co.,  167  Fed.,  198;  Wahash  R.  Go. 
Y.  U.  S.  and  Elgin,  J.  &  E.  Ry.  Go.  v.  TJ.  S.,  168  Fed.,  1 ;  U.S.  v. 
Boston  &  M.  R.  Go.,  168  Fed.,  148;  Atlantic  Goast  Line  R.  Go.  v. 
TJ.  S.,  168  Fed.,  175;  Chicago  Junction  Ry .  Go.  v.  King,  169  Fed., 
372;  Chicago,  R.  I.  c&  P.  Ry.  Go.  v.  Brown,  185  Fed.,  80;  Phila- 
delphia &  R.  Ry.  Go.  V.  Winkler,  56  Atl.,  112;  TJ.  S.  v.  Balti- 
more cfc  O.  R.  Co.,  D.  C,  N.  D.  West  Virginia,  Jan.  18,  1909, 
Dayton,  D.  J.  [unreported];  TJ.  S.  v.  Pennsylvania  R.  Co., 
D.  C,  W.  D.  Pennsylvania,  Nov.  3, 1909,  Orr,  D.  J.  [unreported]; 
Snyder  v.  Southern  Ry.  Go.,  C.  C.,  E.  D.  Tennessee,  Jan.  21, 
1910,  Sanford,  D.  J.  [unreported]. 

(a).   The  delegation  to  the  Interstate  Commerce  Commission  and  the 
American   Railway   Association   of   authority   to   designate   the 
standard  height  of  drawbars  is  not  unconstitutional. 
St.  Louis,  I.  M.  cfe  S.  Ry.  Co.  v.  Taylor,  210  U.  S.,  281. 
Supreme  Court,  May  18,  1908. 

It  is  contended  that  there  is  here  an  unconstitutional  delega- 
tion of  legislative  power  to  the  Railway  Association  and  to  the 
Interstate  Commerce  Commission.  This  is  clearly  a  Federal 
question.  Briefly  stated,  the  statute  enacted  that  after  a  date 
named  only  cars  with  drawbars  of  uniform  height  should  be  used 
in  interstate  commerce,  and  that  the  standard  should  be  fixed  by 
the  Association  and  declared  by  the  Commission.  Nothing  need 
be  said  upon  this  question  except  that  it  was  settled  adversely 
to  the  contention  of  the  plaintiff  m  error  in  Buttfield  v.  Stranahan, 
192  U.  S.,  470,  a  case  which  in  principle  is  completely  in  point. 
And  see  Union  Bridge  Co.  v.  U.  S.,  204  U.  S.,  364,  where  the  cases 
were  reviewed. —  Moody,  Justice,  p.  287. 

2.  The  Acts  impose  upon  the  carriers  subject  to  their  terms  an  abso- 
lute and  unconditional  duty,  not  only,  in  the  first  instance,  to 
provide  the  requisite  equipment,  but,  at  all  times  thereafter  and 
under  all  circumstances,  to  maintain  appliances  in  a  condition 
of  repair: 
St.  Louis,  7.  M.  c&  S.  Ry.  Co.  v.  Taylor,  210  U.  S.,  281. 
Supreme  Court,  May  18,  1908. 

The  Congress,  not  satisfied  with  the  common-law  duty  and 
its  resulting  liability,  has  prescribed  and  defined  the  duty  by 
statute.  We  have  nothing  to  do  but  to  ascertain  and  declare 
the  meaning  of  a  few  simple  words  in  which  the  duty  is  described. 
It  is  enacted  that  ''no  cars,  either  loaded  or  unloaded,  shall  be 
used  in  interstate  traffic  which  do  not  comply  with  the  standard.' ' 
There  is  no  escape  from  the  meaning  of  these  words.  Explana- 
tion can  not  clarify  them,  and  ought  not  to  be  employed  to  con- 
fuse them  or  lessen  their  significance.     The  obvious  purpose  of 


CONSTRUCTION  AND  INTERPRETATION.  H 


the  Legislature  was  to  supplant  the  qualified  duty  of  the  common 
law  with  an  absolute  duty  deemed  by  it  more  just. — Moody^ 
Justice,  pp.  294-295. 

Chicago,  B.  &  Q.  Ry.  Co.  v.  U.  S.,  220  U.  S.,  559. 
Supreme  Court,  May  15,  1911. 

In  view  of  these  facts,  we  are  unwilling  to  regard  the  ques- 
tion as  to  the  meaning  and  scope  of  the  Safety  Appliance  Act,  so 
far  as  it  relates  to  automatic  couplers  on  trams  moving  in 
interstate  traffic,  as  open  to  further  discussion  here.  If  the  court 
was  wrong  in  the  Taylor  Case  [210  U.  S.,  281]  the  way  is  open  for 
such  an  amendment  of  the  statute  as  Congress  may,  in  its  discre- 
tion, deem  proper.  This  court  ought  not  now  disturb  what  has 
been  so  widely  accepted  and  acted  upon  by  the  courts  as  having 
been  decided  in  that  case.  A  contrary  course  would  cause  infinite 
imcertainty,  if  not  miscliief,  in  the  administration  of  the  law  in 
the  federal  courts.  To  avoid  misapprehension,  it  is  appropriate 
to  say  that  we  are  hot  to  be  understood  as  questioning  the  sound- 
ness of  the  interpretation  heretofore  placed  by  this  court  upon 
the  Safety  Appliance  Act.  We  only  mean  to  say  that  until  Con- 
gress, by  an  amendment  of  the  statute  changes  the  rule  an- 
nounced in  the  Taylor  Case,  this  court  will  adhere  to  and  apply 
that  rule. -^Harlan,  Justice,  p.  577. 

DelJc  V.  St.  Louis  &  S.  F.  R.  Co.,  220  U.  S.,  580. 
Supreme  Court,  May  15,  1911. 

The  construction  of  the  statute,  adopted  by  a  majority  of 
the  Circuit  Court  of  Appeals  to  the  effect  that  the  Act  did  not 
impose  upon  the  carrier  an  absolute  duty  to  provide  and  keep 
proper  coupler  at  all  times  and  under  all  circumstances,  but  was 
bound  only  to  the  ext:  nt  of  its  best  endeavor  to  meet  the  require- 
ments of  the  statute,  has  been  rejected  by  this  court  in  Chicago, 
B.  dc  Q.  Ry.  Co.  v.  U.  S.  [220  U.  S.,  559],  just  decided,  and  on  the 
authority  of  that  case  we  hold  that  the  Circuit  Court  of  Appeals 
erred  in  the  particular  mentioned. — Harlan,  Justice,  pp.  586-587. 

U.  S.  V.  Great  Northern  Ry.  Co.,  150  Fed.,  229;  Plummer  v.  North- 
ern Pacific  Ry.  Co.,  152  Fed.,  206;  TJ.  S.  v.  Southern  Pacific 
Co.,  154  Fed.,  897;  U.  S.  v.  Philadelphia  cfc  R.  Ry.  Co.,  162  Fed., 
403;  U.  S.  V.  Philadelphia  &  R.  Ry.  Co.,  162  Fed.,  405;  TJ.  S.  v. 
Pennsylvania  R.  Co.,  162  Fed.,  408;  U.  S.  v.  Lehigh  Valley  R. 
Co.,  162  Fed.,  410;  U.  S.  v.  Atchison,  T.  &  S.  F.  Ry.  Co.,  163 
Fed.,  517;  U.  S.y.  Denver  &  R.G.R.  Co., \mYQdi.,bl^;  Chicago, 
M.  cfc  St.  P.  Ry.  Co.  V.  TJ.  S.,  165  Fed.,  423;  Donegan  v.  Balti- 
more &  N.  Y.  Ry.  Co.,  165  Fed.,  869;  U.  S.  v.  Ene  R.  Co.,  166 
Fed.,  352;  V.  S.  v.  Wheeling  &  L.  E.  R.  Co.,  167  Fed.,  198;  U. 
S.  V.  Atchison,  T.  &  S.  F.  Ry.  Co.,  167  Fed.,  696;  TJ.  S.  v.  South- 
ern Pacific  Co.,  167  Fed.,  699;  Atlantic  Coast  Line  R.  Co.  v.  TJ.  8., 
168  Fed.,  175;  TJ.S.v.Southern  Pacific  Co.,  IQ9  Fed.,  ^07;  U.S. v. 
Baltimore  c&  0.  R.  Co.,  170  Fed.,  456;  Chicago,  B.  cfc  Q.  Ry.  Co., 
V.  U.  S.,  170  Fed.,  556:  U.  S.  v.  Southern  Ry.  Co.,  170  Fed., 
1014;  Atchison,  T.  &  S.  F.  Ry.  Co.,  v.  U.  S.,  172  Fed.,  1021; 
NorfolJc  db  W.  Ry.  Co.  v.  U.  S.,  177  Fed.,  623;  Johnson  v.  Great 
Northern  Ry.  Co.,  178  Fed.,  643;  Siegel  v.  New  YorJc  Central  d; 


12  SAFETY  APPLIANCE  ACTS. 


H,  R,  R.  Co.,  178  Fed.,  873;  Galveston,  H.  cfe  ^S'.  A.  Ry.  Co.  v. 
V.S.,  183  Fed.,  579;  Norfolk  &  W.  Ry.  Co.  v.  U.  S.,  191  Fed., 
302;  Nichols  v.  Chesapeake  <&  0.  Ry.  Co.,  195  Fed.,  913;  Galves- 
ton, H,  cfe  S.  A.  Ry.  Co.  v.  U.  S.,  199  Fed.,  891;  U.  S.  v.  Pere 
Marquette  R.  Co.,  211  Fed.,  220;  U.  S.  v.  Trinity  &  B.  V.  Ry, 
Co.,  211  Fed.,  448 ;  Philadelphia  cfc  R.  Ry.  Co.  v.  Winkler,  56  Atf., 
112;  Luken  v.  Lake  Shore  <&  M.  8.  Ry.  ^Co.,  94  N.  E.,  175;  (7ar- 
sonv.  Southern  Ry.  Co.,  4:6  S.  E.,  525;  Montgomery  y.  Carolina  cfc 
N.  W.  R.  Co.,  80  S.  E.,  83;  Brinkmeier  v.  Missouri  Pacific  Ry. 
Co.,  105  Pac,  221;  St.  Louis,  L  M.  <&  S.  Ry.  Co.  v.  Neal,  78 
S.  W.,  220;  St.  Louis,  1.  M.  cfc  S.  Ry.  Co.  v.  York,  123  S.  W., 
376;  Galveston  H.  &  S.  A.  Ry.  Co.  v.  Kurtz,  147  S.  W.,  658; 
St.  Louis  cfc  S.  F.  R.  Co.  v.  Conarty,  155  S.  W.,  93;  NashviUe, 
C.  <&  St.  L.  Ry.  Co.  V.  Henry,  164  S.  W.,  310;  Burho  v.  Minne- 
apolis <&  St.  L.  Ry.  Co.,  141  N.  W.,  300;  Popplar  v.  Minneapolis, 
St.  P.  &  S.  S.  M.  Ry.  Co.,  141  N.  W.,  798;  WiUett  v.  Illinois 
Central  R.  Co.,  142  N.  W.  883;  Steams  v.  Chicago,  R.  I.  cfe 
P.  Ry.  Co.,  148  N.  W.,  128;  Atlantic  Coast  Line  R.  Co.  v. 
Whitney,  61  So.,  179;  Luken  v.  Lake  Shore  (&  M.  S.  Ry.  Co.,  154 
111.  App.,  550;  U.  S.  v.  Baltimore  cfc  0,  R.  Co.,  D.  C,  N.  D.  West 
Virginia,  Jan.  18,  1909,  Dayton,  D.  J.  [unreported];  U.  S.  v. 
Southern  Ry.  Co.  and  U.  S.  v.  Atlantic  Coast  Line  R.  Co.,  D.  C,  D. 
South  Carolina,  Feb.  24,  1909,  Brawley,  D.  J.  [unreported];  U.  S. 
V.  Pennsylvania  R.  Co.,  D.  C,  W.  D.  Pennsylvania,  Nov.  3,  1909, 
Orr,  D.  J.  [unreported];  U.  S.  v.  Southern  Pacific  Co.,  D.  C,  D. 
Nevada,  Nov.  24,  1909,  Farrington,  D.  J.  [unreported];  U.  S.  v. 
Northern  Pacific  Ry.  Co.,  D.  C,  W.  D.,  Washington,  Dec.  6, 1913, 
Cushman,  D.  J.  [unreported].  See  also  Z7.  S.  v.  Illinois  Central 
R.  Co.,  177  Fed.,  801. 

Per  Contra: 

Johnson  V.  Southern  Pacific  Co.,  117  Fed.,  462;  U.  S.  v.  Illinois  Central  R.Co.,  156 
Fed.,  182;  St.  Louis  &  S.  F.  R.  Co.  v.  Delk,  158  P^ed.,  931;  U.  S.  v.  Illinois 
Central  R.  Co.,  170  Fed.,  542;  Norfolk  &  W.  Ry.  Co.  v.  Hazelrigg  (1st  appeal),  170 
Fed.,  551;  Missouri  Pacific  Ry.  Co.  v.  Brinkmeier,  93  Pac,  621;  U.  S.  v.  Baltimore 
&  0.  R.  Co.,  D.  C,  S.  D.  Ohio,  June  10,  1909,  Sater,  D.  J.  [unreported];  U. 
S.  V.  Baltimore  &  0.  R.  Co.  and  U.  S.  v.  Toledo  Terminal  R.  Co.,  D.  C,  N.  D. 
Ohio,  June  15, 1909,  Cochran,  D.  J.  [unreported].  See  also  *Galveston,  H.  & 
S.  A.  Ry.  Co.  V.  U.  S.,  199  Fed.,  891. 

*In  the  case  of  GalveMon,  H.  &  S.  A.  Ry.  Co.  v.  U.  S.,  199  Fed.,  891,  decided  by 
the  Circuit  Court  of  Appeals  for  the  5th  Circuit,  October  7, 1912,  the  following  is  to  be 
noted: 

Involving  the  construction  of  the  Safety  Appliance  Acts,  two  classes  of  suits,  one  for  injury  to  employees 
and  the  other  to  penalize  the  railroads  for  noncompliance,  have  been  passed  upon  by  the  courts.  In  the 
first  it  has  been  substantially  settled  that  the  duty  on  the  railroads  was  absolute,  and  noncompliance  with- 
out excuse,  St.  Louis,  I.  M.  &  S.Ry.  Co.  v.  Taylor,  210  U.  S.,281.  In  the  other  class,  decisions  have 
been  conflicting;  the  Supreme  Court  not  having  passed  on  the  precise  question  involved. 

In  thus  distinguishing  between  actions  for  personal  injury  and  suits  for  the  re- 
covery of  statutory  penalties,  the  decision  of  the  Supreme  Court  in  the  Burlington 
Case  [220  U.  S.,  559],  decided  May  15,  1911,  was  apparently  overlooked.  In  this 
connection,  however,  it  is  to  be  noted  that  in  a  later  decision  by  the  same  appellate 
court,  U.  S.  V.  Trinity  &  B.  V.  Ry.  Co.,  211  Fed.,  448,  in  which  the  Burlington  Caseis 
cited  with  approval,  it  is  expressly  held  that  "the  duty  to  have  and  maintain  in  good 
order  the  safety  appliances  required  is  a  positive  duty  imposed  on  the  carrier  by  the 
statute."    See  Item  B-5,  p.  24,  post. 


CONSTRUCTION  AND  INTERPRETATION.  13 


(^a).  Diligence  in  the  discovery  and  repair  of  defects  is  not  a  defense 
to  prosecutions  under  the  Acts : 

WahasJi  R.  Co.  v.   U.  S„  172  Fed.,  864. 

Circuit  Court  of  Appeals,  7th  Circuit,  eJune  23,  1909. 

The  second  question  is  raised  by  the  following  instruction 
to  the  jury,  to  which  exception  was  duly  entered:  ^'*  *  * 
The  mere  fact  that  the  defendant  had  used  diligence  or  care  to 
keep  those  cars  in  a  reasonably  safe  condition  is  not  a  question 
before  you.  That  is  no  defense  to  this  suit.  This  statute  is 
commanding,  and  requires  the  defendant  at  its  peril  to  keep 
these  couplers  in  such  condition  so  that  the  men  whose  business 
it  is  to  couple  them  will  not  be  required  to  go  between  the  cars 
to  do  it;     *     *     *." 

Since  this  case  was  brought  here  and  the  briefs  filed,  this 
question  has  been  disposed  of  against  the  contentions  of  the 
plaintiff  in  error  in  the  case  of  St.  Louis,  I.  M.  <&  S.  Ry.  Co.  v. 
Taylor,  210  U.  S.,  2S1. —  Grosscup,  C  J.,  pp.  865-866. 

U.  S.  V .  Southern  Pacific  Co.,  169  Fed.,  407. 

Circuit  Court  of  Appeals  8th  Cncuit,  April  3,  1909. 

Since  the  decision  by  the  Supreme  Court  of  the  case  of  St. 
Louis,  L  M.  <&  S.  Ry.  Co.  v.  Taijlor,  210  U.  S.,  281,  we  have 
uniformly  held  that  the  Safety  Appliance  Law  imposed  an  abso- 
lute duty  upon  carriers  of  interstate  commerce  to  equip  and 
maintain  their  engines  and  cars  used  m  or  in  connection  with  that 
service  in  the  way  prescribed  by  that  law,  and  that  the  perform- 
ance of  this  duty  is  not  excused  by  the  exercise  of  reasonable 
care. — Adams,  C.  J.,  p.  409. 

St  Louis,  L  M.  cfc  S.  Ry.  Co.  v.  Taylor,  210  U.  S.,  281 ;  Chicago,  B.  db 
Q.Ry.Co.y.  U.  S. ,220V. S.,559;  DeTkY.St.Louis&S.  F.R.Co., 
220  IT.  S.,  580;  V.  S.  v.  Southern  Ry.  Co.,  135  Fed.,  122;  U.  S.  v. 
SouthernPadfic Co., 154:Fed., S97 ;  U.S. v.  Chicago, B.SQ.Ry.  Co., 
156  Fed.,  180;  U.  S.  v.  Philadelphia  <Sb  R.  Ry.  Co.,  160  Fed.,  696; 
V.  S.  V.  Louisville  &  N.  R.  Co.,  162  Fed.,  185;  TJ.  S.  v.  Atchison, 
T.  &  S.  F.  Ry.  Co.,  163  Fed.,  517;  V.  S.  v.  Denver  &  R.  G.  R. 
Co.,  163  Fed.,  519;  Chicago,  M.  cfc  St.  P.  Ry.  Co.  v.  V:S.,  165 
Fed.,  423;  V.  S.  v.  Wheeling  &  L.  E.  R.  Co.,  167  Fed.,  198;  U.  S, 
V.  Southern  Pacific  Co.,  167  Fed.,  699;  Chicago  Junction  Ry.  Co. 
V.  King,  169  Fed.,  372;  U.S.  v.  Baltimore  &  0.  R.  Co.,  170  Fed., 
456;  Chicago, B.  &  Q.  Ry.  Co.  v.  U.  S.,  170  Fed.,  556;  U.  S.  v. 
SouthemRy.  (7o.,  170 Fed.,  1014;  U.S. v.  Oregon ShoH Line  R.  Co., 
180  Fed.,  483;  U.  S.  v.  Wahash  R.  Co.,  D.  P.,  E.  D.  Illinois,  Nov. 
19,  1907,  Wright,  D.  J.  [unreported];  U.  S.  v.  Philadelphia  dc  R. 
Ry.  Co.,  D.  C,  F.  D.  Pennsylvania,  Mar.  17,  1908,  McPherson, 
D.  J.  [unreported];  U.  S.  v.  Pennsylvania  R.  Co.,  D.  C,  E.  D. 
Pennsylvania,  Mar.  18,  1908,  McPherson,  D.  J.  [unreported]; 
U.  S.  V.  Atchison,  T.  <&  S.  F.  Ry.  Co.,  D.  C,  S.  D.  California, 
June  6,  1908,  Wellborn,  D.  J.  [unreported];  U.  S.  v.  Baltimore  <& 
0.  R.  Co.,  D.  C,  N.  D.  West  Virginia,  Jan.  18,  1909,  Dayton, 
D.  J.  [unreported];  U.  S.  v.  Southern  Ry.  Co.,  and  U.  iS.  v. 
Atlantic  Coast  Line  R.  Co.,  I).  (\,  D.  South  Carolina,  Feb.  24, 
1909,  Brawley,  D.  J.  [unreported]. 


^4  SAFETY  APPLIANCE  ACTS. 


Per  Contra: 

U.  8.  V.  Illinois  Central  R.  Co.,  153  Fed.,  182;  St.  Louis  &  S.  F.  R.  Co.  v. 
Delk,  158  Fed.,  931;  U.  S.  v.  Illinois  Central  R.  Co.,  170  Fed.,  542;  Norfolk  <fc 
W.  Ry  Co.  V.  Hazelrigg  (1st  appeal),  170  Fed..  551;  U.  S.  v.  Baltimore  &  0.  R. 
Co..  D.  C,  S.  D.  Ohio.  .Tune  10,  1909,  Sater,  D.  J.  [unreported];  U.  S.  v.  Balti- 
more  &  0.  R.  Co.,  and  U.  S.  v.  Toledo  Terminal  R.  Co.,  D.  C,  N.  D.  Ohio, 
June  15,  1909,  Cochran,  D.  J.  [unreported]. 

— (i).  But  the  exercise  of  sucli  diligence  on  tlie  part  of  carriers  will,  in 
great  measure,  obviate  occasion  for  prosecution: 
U.  S.  V.  Indiana  Harbor  R.  Co.,  157  Fed.,  565. 

District  Court,  Northern  District  of  Illinois,  November  20, 1906. 
Without  regard  to  what  the  rule  of  liability  may  be,  the 
exercise  of  the  greatest  care  in  the  matter  of  equipment  and 
maintenance  will  keep  coupling  appliances  in  such  condition  as 
to  exclude,  except  in  very  remote  instances,  the  necessity  of 
prosecutions  for  the  enforcement  of  the  Act. — Landis,  D.  J., 
pp.  566-567. 

(b).  Prior  knowledge  on  tbe  part  of  carriers,  with  respect  to  the  exist- 
ence of  defects,  is  not  an  element  of  violations  of  the  Acts : 
U.  S.  V.  Trinity  cfc  B.  V.  Ry.  Co.,  211  Fed.,  448. 

Circuit  Court  of  Appeals  5th  Circuit,  December  1,  1913. 

Bear  in  mind  that  under  the  Safety  Appliance  Act  of  1 893, 
and  the  amendments,  ignorance  of  defects  does  not  excuse. — Call, 
D.  J.,  p.  452. 
Chicago,  B.  &  Q.  Ry.  Co.  v.   U.  S.,  170  Fed.,  556. 

Circuit  Court  of  Appeals,  8th  Circuit,  April  24,  1909. 

Whether  a  defendant  carrier  knew  its  cars  were  out  of  order 
or  not  is  immaterial.     Its  duty  was  to  know  they  were  in  order 
and  kept  in  order  at  all  times. — Adams,  C.  J.,  p.  558. 
U.  S.  y.  Southern  Pacific  Co.,  154  Fed.,  897. 

District  Court,  District  of  Oregon,  April  1,  1907. 

The  railroad  companies  are  charged,  as  I  have  shown,  with 
the  duty  of  hauling  only  such  cars  as  are  provided  with  automatic 
couplers  in  suitable  repair,  so  as  to  be  operative  without  the 
necessity  of  employees  going  between  the  cars ;  and  it  would  go 
far  to  subvert  the  law  and  the  purpose  thereof  if  they  were  per- 
mitted to  say  that  they  had  no  knowledge  of  the  defect,  and  that 
therefore  they  were  not  liable  under  the  Act.  The  companies 
must  ascertain  for  themselves  and  at  their  peril  whether  or  not 
they  have  taken  up  or  are  hauhng  cars  with  defective  couplers. 
Their  intention  to  do  right  does  not  relieve  them.  [Z7.  S.  v. 
Great  Northern  Ry  Co.,  150  Fed.,  229.]  I  hold,  therefore,  that  want 
of  knowledge  of  the  defects  on  the  part  of  the  defendant  com- 
pany does  not  constitute  a  defense. —  Wolverton,  D.  J.,  p.  900. 
U.  8.  V.  Chicago,  M.  &  St.  P.  Ry.  Co.,  149  Fed.,  486;  U.S. 
V.  Chicago  B.  cfc  Q.  Ry.  Co.,  156  Fed.,  180;  V.  S.  v.  Louisville  & 
N.  R.  Co.,  162  Fed.,  185;  U.  S.  v.  Chicago  Great  Western  Ry.  Co., 
162  Fed.,  775:  U.  S.  v.  Southern  Pacific  Co.,  W7  ¥ed.,Q99;  Nash- 
ville G.  &  St.  L.  Ry  Co.  v.  Henry,  164  S.  W.,  310;  U.  S.  v.  El 
Paso  cfc  S.  W.  R.  Go.  et  al,  D.  C.,  W.  D.  Texas,  Apr.  10,  1907, 
Maxey,  D.  J.  [unreported];   U.  S.  v.  Lehigh  Valley  R.  Go.  D.  C.,. 


CONSTRUCTION  AND  INTERPRETATION.  15 


E.  D.  Pennsylvania,  Mar.  17,  1908,  McPherson,  D.  J.  [unre- 
ported]; TJ.  S.  V.  Pennsylvania  R.  Co.,  D.  C,  E.  D.  Pennsylvania, 
Mar.  18,  1908,  McPherson,  D.  J.  [unreported];  U.  S.  y.  Atchi- 
son, T.  &  S.  F.  Ry.  Co.,  D.  C,  S.  D.  California,  June  6,  1908, 
Wellborn,  D.  J.  [unreported];  U.  S.  v.  Atchison,  T.  <&  S.  F,  Ry. 
Co.,  D.  C,  D.  Arizona,  July  17,  1908,  Sloan,  D.  J.  [unreported]. 

Per  Contra: 

U.  8.  V.  Atchison,  T.  &  S,  F.fRy,  Co., 5l501Fed.,5442;lZ7.l>S.5v.!/ZZmow  Central 
E.  Co.,  156  Fed.,  182. 

(c).  A  willful  intention,  on  the  part  of  carriers,  to  disregard  the  Acts, 
is  not  an  element  of  their  violation : 
Chicago,  B.  d)  Q.  Ry.  Co.  v.  U.  S.,  170  Fed.,  556, 

Circuit  Court  of  Appeals,  8th  Circuit,  April  24,  1909. 

Tiiis  was  by  clear  and  unequivocal  language  of  the  law- 
maker made  an  absolute  duty  not  dependable  upon  the  exer- 
cise of  diligence  or  the  existence  of  any  wrong  intent  on  the  part 
of  the  railroad  companies. — Adams,  C.  J.,  p.  558. 
V.  S,  V.  Southern  Pacific  Co.,  154  Fed.,  897. 

District  Court,  District  of  Oregon,  April  1,  1907. 

The  companies  must  ascertain  for  themselves,  and  at  their 
peril,  whether  or  not  they  have  taken  up  or  are  hauling  cars  with 
defective  couplers.     Their  intention  to  do  right  does  not  relieve 
them. —  Wolverton,  D.  J.,  p.  900. 
U,  S.  V.  Baltimore  db  0.  R.  Co.,  170  Fed.,  456. 

District  Court,  Western  District  of  Pennsylvania,  May  17, 1909. 
I  say  to  you  that  the  matter  of  willful  negligence  dees  not 
enter  into  this  case  at  all;  because  the  law  makes  it  an  absolute, 
imperative  duty  upon  the  railroad  company  to  keep  its  cars  so 
equipped. — Orr,  D.  J.,  p.  458. 
Luken  v.  LaTce Shore  &  M.  S.  Ry  Co.,  94  N.  E.,  175;  U.  S,  v.  El  Paso 
cfe  S.  W.  R.  Co.  et  al,  D.  C,  W.  D.  Texas,  Apr.  10,  1907, 
Maxey,  D.  J.  [unreported];  U.  S.  v.  Southern  Ry.  Co.,  D.  C,  D. 
South  Carolina,  Feb.  24,  1909,  Brawley,  D.  J.  [imreported]. 

(d).  The  fact  that  it  may  be  inconvenient  for  a  carrier  to  observe 
the  Acts  does  not  excuse  their  violation : 

Chicago  Junction  Ry.  Co.  v.  King,  169  Fed.,  372. 

Circuit  Court  of  Appeals,  7th  C  ircuit,  February  3,  1909. 
Now,  if  the  exercise  of  reasonable  care  in  maintaining  the 
statutory  standard  of  equipment  will  not  exempt  a  car  move- 
ment as  being  beyond  the  spirit,  and  therefore  the  reach,  of  the 
statute  [citing  cases],  much  less  will  mere  convenience  be  ac- 
cepted as  an  excuse. — Balcer,  C.  J.,  p.  377. 
TJ.  S.  V.  Southern  Pacific  Co.,  169  Fed.,  407. 

Circuit  Court  of  Appeals,  8th  Circuit,  April  3,  1909. 

Conformity  to  the  requirements  of  the  law,  as  so  inter- 
preted, it  must  be  admitted,  will  often  be  inconvenient  and 
sometimes  impracticable;  but  Congress  had  before  it  for  con- 
sideration the  important  question  of  promoting  the  safety  of 
employees  and  travelers  upon  railroads,  and  in  the  accomplish- 


16  SAFETY  APPLIANCE  ACTS. 


ment  of  its  purpose  it  may  well  be  that  the  legislative  mind  con- 
sidered the  inconvenience  and  impracticability  of  a  literal  com- 
pliance at  times  with  the  law,  and  the  consequent  infliction  of 
the  light  penalties  imposed  for  its  violation  to  be  of  little  moment 
compared  with  the  greater  importance  of  protecting  life,  limb 
and  property. — Adams,  C.  J.,  p.  409. 

V.  S.  V.  Southern  Pacific  Co.,  [unreported]. 

District  Court,  District  of  Nevada,  November  24,  1909. 
The  company  can  not  discriminate  between  repair  points 
or  haul  a  car  defective,  as  to  safety  appliances,  from  one  repair 
point  to  another  more  fully  equipped  tor  makmg  such  repairs, 
and  where  they  might  be  more  conveniently  made.  Mere  con- 
venience can  not  be  accepted  as  an  excuse,  and  the  movement 
of  such  defective  car  from  one  repair  point  to  another  is  beyond 
the  spirit,  and  therefore  the  reach,  of  the  law. — Farrington,  D.  J. 

Siegel  v.  New  Yorlc  Central  &  H.  R.  R.  Co.,  178  P^ed.,  873;  U.  S. 
V.  Grand  Trunk  Ry.  Co.  of  Canada,  203  Fed.,  775:  V.  S.  v.  Pere 
Marquette  R.  Co.,  211  Fed.,  220;  U.  S.  v.  Northern  Padfic  Ry  Co., 
D.  C,  W.  D.  Washington,  Dec.  6,  1913,  Cushman,  D.  J.  [unre- 
ported]. 

(e).  The  absolute  duty  of  carriers  under  the  Acts  is  not  to  be  evaded 
by  assignment  or  otherwise; 
Philadelphia  &  R.  Ry.  Co.  v.  V.  8.,  191  Fed.,  1. 

Circuit  Court  of  Appeals,  3rd  (  ircuit,  November  6,  1911. 
The  fact,  if  it  be  a  fact,  that  in  this  case  the  inspection  of 
the  cars  was  made  by  the  servants  of  the  C  entral  Railroad  of 
New  Jersey,  can  not  relieve  the  defendant  from  the  liability 
imposed  by  the  Act.  It  can  not  by  contract  dispense  with  any 
care  required  of  it  by  law,  and  the  most  that  could  be  said  of  such 
a  situation  would  be  that  it  had  voluntarily  made  the  inspectors 
of  the  other  company  its  own. — Gray,  C.  J.,  p.  4. 
Chicago  Junction  Ry.  Co.  v.  King,  169  Fed.,  372. 

Circuit  Court  of  Appeals,  7th  Circuit,  February  3,  1909. 

Upon  the  carrier  the  statute  lays  the  duty  of  seeing  to  it 
that  no  oars  are  hauled  or  used  on  its  line  that  are  not  equipped 
according  to  the  statutory  requirements.  This  direct  statutory 
duty  can  not  be  evaded  by  assignment  or  otherwise. — Baker, 
C.  J.,  p.  378. 

— (i).  And  the  decision  of  a  conductor  as  to  the  disposition  of  a  defect- 
ive car  is,  in  effect,  the  decision  of  the  carrier  by  which  he  is 
employed ; 
Chicago  Junction  Ry.  Co.  v.  King,  169  Fed.,  372. 
Circuit  Court  of  Appeals,  7th  K  ircuit,  February  3,  1909. 

This  direct  statutory  duty  can  not  be  evaded  by  assignment 
or  otherwise.     Therefore  the  act  of  the  conductor  who  had  charge 
of  the  train  in  deciding  what  should  be  done  with  the  defective 
•     car  was  the  act  of  the  defendant. — Baker,  C.  J.,  p.  378. 


CONSTRUCTION  AND  INTERPRETATION.  17 


(f).  A  carrier  is  liable  under  the  Acts  for  the  defective  condition  of  a 
safety  appliance,  even  though  the  deliberate  act  of  an  employee 
may  have  rendered  it  inoperative  or  inefficient ; 
U.  S.  V.  Southern  Pacific  Co.,  167  Fed.,  699. 

District  Court,  Northern  District  of  California,  December  4, 1908. 

You  are  instructed  that  the  law  lays  an  unqualified  duty 
upon  a  railroad  company  to  keep  its  coupling  devices  in  a  certain 
prescribed  condition,  and  if  an  employee  of  such  company  delib- 
erately puts  such  devices  in  another  condition,  which  condition 
the  law  undertakes  to  prevent,  then  the  company  is  liable  to 
respond,  under  the  penalty,  for  the  unlawful  act  of  the  employee, 
and  if  you  believe  from  the  evidence  that  the  knuckle  was 
removed  from  this  car  for  the  purpose  of  chaining  it  to  another 
car,  and  that  the  car  was  so  hauled  in  interstate  traffic  in  that 
condition,  and  in  that  condition  it  would  be  necessary  for  a  man 
to  pass  between  the  end  of  that  car  and  an  adjacent  car  in  order  to 
couple  and  uncouple  them,  your  verdict  should  be  for  the 
Government. — De  Haven,  D.  J.,  pp.  701-702. 
U.  S.  V.  Cincinnati,  H.  <&  D.  R,  Co.,  [unreported]. 

District  Court,  Northern  District  of  Ohio,  June  24,  1908. 

Where  an  act  lays  the  unqualified  duty  upon  a  railroad  com- 
pany to  keep  its  coupling  devices  in  a  certain  condition  and  one 
of  its  employees  deliberately  puts  it  in  another  condition,  which 
is  a  condition  that  the  law  undertakes  to  prevent,  then  the  cor- 
poration is  required  to  respond,  under  this  penalty,  for  the  unlaw- 
ful act  of  its  employees.     *     *    * 

If  I  catch  the  spirit  of  this  law  as  that  spirit  has  been  declared 
especially  in  this  latest  case  decided  by  the  Supreme  Court  on  the 
18th  of  May  [St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Taylor,  210  U.  S.,  281], 
then  certainly  it  must  be  said  that  the  fact  that  the  condition  in 
which  the  lever  which  ought  to  be  attached  to  a  coupling  device 
is  found  is  due  to  the  willful  act  of  an  employee,  yet  since  the 
result  is  the  failure  to  perform  an  unquaUfied  duty  laid  upon  the 
railroad  company  by  Congress  it  must  be  said  to  be  a  violation  of 
the  law. —  Tayler,  D.J. 
But  see  Galveston,  E.  cfc  S.  A.  Ry  Co.  v.  Kurtz,  147  S.  W.,  658. 

— (i).  But  no  violation  of  the  Acts   results  from  the  failure  of  an 
employee  efficiently  to  operate  equipment,  provided  such  equip- 
ment is  actually  operative; 
U.  S.  V.  niinois  Central  R.  Co.,  156  Fed.,  182. 

District  Court,  Western  District  of  Kentucky,  November  1, 1907. 
The  Act  requires  equipment,   and,   although  there  is   no 
express  language  to  that  efiect,  the  Act  must  be  construed  to 
mean  equipment  which,  if  there,  is  capable  of  being  operated; 
but  no  penalty  is  imposed  if,  being  there,  it  is  not  in  fact  efficiently 
operated  by  those  in  charge  of  the  train.     Equipment  only  is  the 
required  thing,  and  not  the  proper  manipulation  of  that  equip- 
ment by  the  employees. — Evans,  D.  J.,  p.  193. 
But  see  Gilbert  v.  Burlington,  C.  R.  &  N.  Ry.'Co,,  128  Fed.,  529; 
Johnston  v.  Chicago  Great  Western  Ry.  Co.,  164  S.  W.,  260. 
50611—15 2 


18  SAFETY  APPLIANCE  ACTS. 


(g) .  Safety  appliances  designed  to  secnre  compliance  with  the  Acts  must 
be  operative. 

Norfolk  &   W.  Ry.  Oo.  v.   LI  S.,  177  Fed.,  623. 

Circuit  Court  of  Appeals,  4th  Circuit,  March  4,  1910. 

On  the  other  hand,  there  is  no  restriction  upon  the  placing 
of  two  such  levers,  one  on  oa<:*h  side,  on  the  end  of  any  or  all  its 
cars,  if  the  companies  desire  or  deem  it  conducive  of  more  effec- 
tive operation  of  the  coupling  automatically  by  impact  without 
the  necessity  of  men  going  betw^een  the  ends  of  the  cars.  But 
while  this  is  true,  these  levers,  whether  one  or  more,  become 
parts  of  the  coupling  device  itself,  and  we  think  a  fair  construc- 
tion of  the  statute  requires  us  to  hold  that  the  device  itself  must 
be  in  such  repair  as  to  be  capable  of  operation,  and  if  the  levers 
furnished  to  operate  it,  whether  one  or  two  at  the  end  of  the 
car,  should,  as  such  parts  of  it,  be  kept  in  condition  to  operate 
it;  that,  if  there  be  two,  one  on  each  side  of  the  end  of  a  car, 
and  one  be  maintained  in  a  condition  capable  of  operation  and 
the  other  not,  the  latter  is  calculated  only  to  deceive  the  em- 
ployee and  under  some  conditions  perhaps  create  a  necessity, 
m  other  conditions  at  least  a  temptation,  to  be  negligent  and 
step  between  the  care  to  uncouple  them  by  hand.  The  defective 
lever  has  no  business  there  and  should  be  either  made  operative 
or  taken  away,  as  it  renders,  in  the  true  sense  of  the  statute,  the 
couplmg  device  of  which  it  is  a  part,  defective. —  Dayton,  D.  J., 
p.  627. 

See  also: 

Chicago,  M.  <&  P.  S.  Ry.  Co.  v.  U.  S.,  \m  Fed.,  882. 
Circuit  Court  of  Appeals,  9th  Circuit,  May  6,  1912. 

It  may  be  true  that  no  reasonably  prudent  railroad  employee 
would  have  attempted  to  couple  to  tJie  front  end  of  the  loco- 
motive with  knowledge  of  its  condition,  but  that  fact  does  not 
avoid  the  violation  of  the  statute.  The  defective  drawbar 
remained  a  danger  and  a  menace,  and  when  all  is  said,  the  fact 
remains  that  its  use  in  that  condition  was  prohibited.  [Citing 
V.  S.  V.  Denver  &  R.  G.R.  Co.,  163  Fed.,  519,  and  other  cases.]  We 
are  referred  to  WahasJiR.  Co.  v.  U.  S.,  172  Fed.,  864,  as  authority 
for  the  proposition  that  a  locomotive  engine  used  in  interstate 
commerce  need  not  necessarily  have  an  automatic  coupler  at  both 
ends.  The  court  in  that  case  held  there  was  no  violation  of 
the  Safety  Appliance  Act  in  the  use  of  an  engine  which  had  been 
originally  equipped  with,  automatic  couplers  at  the  A-end  and  the 
B-end,  but  thereafter  the  lock-chain  had  been  disconnected  and 
the  knuckle  removed  from  the  coupler  at  the  B-end,  leaving  that 
coupler  in  such  condition  that  no  other  car  could  be  coupled 
thereto  or  uncoupled  therefrom,  and  where  it  appeared  that  the 
coupler  at  the  A-end  was  the  only  one  used  at  the  time  in  question 
in  moving  interstate  traffic.  While  with  all  respect  for  that  court 
we  are  inclined  to  doubt  the  correctness  of  that  ruling,  we  find  it 
sufficient  for  the  present  case  to  point  to  the  difference-between 
that  case  and  this.  There  the  coupler  had  been  disconnected  and 
the  knuckle  taken  out  ''in  pursuance  of  a  purpose  that  it  should 
not  be  used."     In  the  case  at  bar  the  plaintiff  in  error  was  found 


CONSTRUCTION  AND  INTERPRETATION.  1^ 


using  a  defective  coupler  at  one  end  of  the  engine,  and  thereafter 
having  revei-sed  the  engine,  was  found  using  the  other  end  for 
the  purpose  of  (ransforring  cars.  Nothing  was  shown  indicative 
of  a  purpose  to  refrain  from  using  both  ends  of  the  locomotive 
for  coupling,  and  no  portion  of  the  coupling  device  was  removed. 
That  device  remained  as  it  was  before,  a  trap  to  the  unwary. 
The  law  may  not  require  that  a  locomotive  shall  be  equipped  with 
couplers  at  both  ends,  but  it  does  require  that,  if  a  locomotive  is 
so  equipped,  the  couplers  shall  be  such  as  to  comply  with  the 
Safety  AppUance  Act.— Gilbert,  0.  J.,  pp.  884-885. 
U.  S.  V.  OJiicago,  M.  d;  P.  S.  Ry.  Go.  [unreported]. 
District  Court,  District  of  Montana,  May  2,  1911. 

As  I  view  the  law,  it  is  illegal  for  a  railroad  company  to  use 
an  engine  in  the  condition  in  which  this  onghie  undoubtedly  was, 
even  though  the  defective  end  was  not  actually  employed.  By 
the  law  it  was  intended  to  prohibit  a  railroad  company  from  using 
a  car  or  engine  hav-ing  a  defective  coupler  only  upon  one  end,  even 
though  that  coupler  was  so  defective  that  a  reasonably  prudent 
man  would  not  undertake  to  make  a  coupling  tlierewith.  The  law 
was  intended  to  protect  the  lives  and  safety  of  all  employees, 
whether  they  are  reasonably  prudent  or  not.  As  I  view  it,  an 
engine  in  the  condition  in  which  this  was  was  a  possible  source  of 

treat  danger,  in  that  if  an  employee  were  standing  upon  the  foot- 
oard  and  the  head  of  the  detective  coupler  was  so  low  as  not  to 
engage  with  the  coupler  upon  a  car  in  proper  condition,  thus 
permitting  the  two  cars  to  come  close  together,  the  employee 
might  be  crushed.  Or,  upon  the  other  hand,  an  employee  of  little 
experience  or  caution  might  undertake,  in  case  of  emergency,  to 
couple  the  defective  coupling  with  that  of  another  car,  and  thus 
imperil  his  safety  or  his  life.  In  that  view  I  have  excluded  the 
testimony  offered  on  behalf  of  the  defendant  and  declined  to  give 
certain  requested  instructions,  and  it  becomes  your  duty  to  find  a 
verdict  in  favor  of  the  plaintiff  in  accordance  with  the  prayer  of 
the  coniplaint. — Dietrich,  D.  J.  [Affirmed  in  Chicago,  M.  <Ss  St, 
P.  Ry.  Co.  V.  U.  S.y  196  Fed.,  882,  arUe.] 
But  see  Wahash  R.  Co.  v.  U.  S.,  172  Fed.,  864. 

3.  Proceedings  on  behalf  of  the  Government  for  the  recovery  of  the 
penalties  provided  by  the  Acts  are  civil  actions ; 
Johnson  V.  Southern  Pacific  Co.,  196  U.  S.,  1. 
Supreme  Court,  December  19,  1904. 

The  primary  object  of  the  Act  was  to  promote  the  public 
welfare  by  securing  the  safety  of  employees  and  travelers,  and 
it  was  in  that  aspect  remedial,  while  for  violations  a  penalty 
of  $100,  recoverable  in  a  civil  action  was  provided  for,  nnd  in 
that  aspect  it  was  ponal. —  Fuller,  Chief  Justice,  p.  17. 
Chicago,  B.  d^  Q.  Ry.  Co.  v.  V.  S..  220  U.  S.,  559;  U.  S.  v. 
Louisville  cfc  .V.  R.  Co.,  162  Fed.,  185;  Z7.  S.  v.  Chicago  Great 
Western  Ry.  Co.,  162  Fed.,  775;  V.  S.  v.  Atchison,  T.  <&  S.  K 
Ry.  Co.,  16.3  Fed.,  517;  U.  S.  v.  Denver  &  R.  G.  R.  Co.,  163 
Fed.,  519;  TJ.  S.  v.  Boston  &  M.  R.  Co..  168  Fed.,  148;  TJ.  iS.Jv. 
Southern  PaciHc  Co.,  169  Fed.,  407;  U.  S.  v.  Baltimore  cfe  O. 
R.  Co.,  170  Fed.,  456;   U.  S.  v.  Illinois' Central  R.  Co.,  170  Fed., 


20  SAFETY  APPLIANCE  ACTS. 


542;  Chicago,  B.  <&  Q.  Ry.  Co.  v.  V.  S.,  170  Fed.,  556;  U,  S.  v. 
Southern  Ry.  Co.,  170  Fed.,  1014;  U.  S.  v.  Chicago,  R.  I.  <&  P, 
Ry.  Co.,  173  Fed.,  684;  V.  S,,y.  Baltimore  cfc  0.  R.  Co.,  176  Fed., 
,  114;  TJ.  S.  V.  Atlantic  Coast  Line  R.  Co.,  182  Fed.,  284;  St. 
Louis  S.  W.  Ry.  Co.  v.  U.  S.,  183  Fed.,  770;  U.  S.  v.  St. 
Louis  S.  W.  Ry.  Co.  of  Texas,  184  Fed.,  28;  U.  S.  v.  Philadel- 
phia (&  R.  Ry.  Co.,  and  V.  S.  v.  Lehigh  Valley  R.  Co.,  D.  C, 
,  E.  D.  Pennsylvania,  Mar.  17,  1908,  McPherson,  D.  J.  [unre- 
ported]; U.  S.  V.  Pennsylvania  R.  Co.,  D.  C,  E.  D.  Pennsyl- 
vania, Mar.  18,  1908,  McPherson,  D.  J.  [unreported];  U.  S.  v. 
Terminal  R.  Ass^n.  of  St.  Louis,  I).  C,  E.  D.  Missouri,  June  3, 
1908,  Dyer,  D.  J.  [unreported];  U.  S.  v.  Chesapeake  dc  0.  Ry. 
Co.,  D.  C,  S.  D.  West  Virginia,  Dec.  2,  1908,  Keller,  D.  J. 
[unreported];  TJ.  S.  v.  Baltimore  c&  0.  R.  Co.,  D.  C,  N.  D. 
West  Virginia,  Jan.  18,  1909,  Dayton,  D.  J.  [unreported]; 
U.  S.  V.  Southern  Ry.  Co.  and  U.  S.  v.  Atlantic  Coast  Line  R. 
Co.,  D.  C,  D.  South  Carolina,  Feb.  24,  1909,  Brawley,  D.  J. 
[unreported];  U.  S.  v.  Baltimore  &  0.  R.  Co.,  D.  C,  S.  D.  Ohio, 
June  10,  1909,  Sater,  D.  J.  [unreported];  TJ.  S.  v.  Toledo  Ter- 
minal R.  Co.  and  U.  S.  v.  Baltimore  &  0.  R.  Co.,  D.  C,  N.  D. 
Ohio,  June  15,  1909,  Cochran,  D.  J.  [unreported];  TJ.  S.  v. 
Southern  Paciic  Co.,  D.  C,  D.  Nevada,  Nov.  24,  1909,  Far- 
rington,  D.  J.  [unreported];  TJ.  S.  v.  Atchison,  T.  c£*  ^S'.  F.  Ry. 
Co.,  D.  C,  N.  D.  Illinois,  Dec.  27,  1909,  Landis,  D.  J.  [unre- 
ported]; U.  S.  V.  Baltimore  cfc  0.  R.  Co.,  D.  C,  D.  Indiana, 
Dec.  13,  1910,  Anderson,  D.  J.  [unreported];  TJ.  S.  v.  Northern 
Pacific  Ry.  Co.,  D.  C,  W.  D.  Washington,  Dec.  6,  1913,  Cush- 
man,  D.  J.  [unreported]. 

Fer  Contra: 

■  U.S.y.  Illinois  Central R.  Co.,  156 Fed.  182;  Atchison,  T.  &  S.  F.  Ry.  Co.  v.  U.S., 
172  Fed.,  194. 

*— (a).  And  the  payment  to  the  United  States  of  the  penalties  recovered 
does  not  render  such  proceedings  criminal  actions : 
■  U.  S.  V.  Illinois  Central  R.  Co.,  170  Fed.,  542. 

Circuit  Court  of  Appeals,  6th  Circuit,  March  27,  1909. 

Assuming  that  the  punishment  is  just,  the  consequences 
Q       to  the  defendant  are  not  far  different  from  those  which  happen 
in  civil  actions,  only  it  is  the  Government  which  is  the  plaintifi. 

The  consequences  of  the  judgment  are  substantially  the 
same  to  him  as  il  the  penalty  was  bestowed  upon  a  private  party, 
except  with  regard  to  the  scintilla  of  interest  lie  has  in  the  public 
revenue.  If  tlie  public  may  for  a  sufficient  reason  compel  the 
defendant  to  pay  a  fine,  it  is  of  little  importance  to  him  whether 
the  Government  keeps  it  for  its  own  purposes  or  turns  it  over  to 
another  who  is  already  indemnified. — Severens,  C.  J.,  p.  544. 

(b).  An  action  in  the  nature  of  an  action  in  debt  is  appropriate  for  the 
recovery  of  the  penalties  provided  by  the  Acts. 

Atlantic  Coast  Line  R.  Co.  v.  U.  S.,  168  Fed.,  175. 

Circuit  Court  of  Appeals,  4th  Circuit,  March  1,  1909. 

While  this  suit  is  in  the  nature  of  a  penal  action,  yet  it  does 
not  follow  that  it  is  a  criminal  prosecution.  It  is  really  an  action 
for  debt.—Pritchard,  C.  J.,  p.  176. 


CONSTRUCTION  AND  INTERPRETATION.  21 


Z7.  S.  V.  Louisville  cfc   N.  R.  Co,,  167  Fed.,  306. 

Circuit  Court  of  Appeals,  6th  Circuit,  February  18,  1909. 
This  is  an  action  of  debt  broui^ht  by  the  United  States  in  the 
District  Court  against  the  T^ouisville  &  Nashville  Railrocid.  Com- 
pany to  recover  a  penalty  of  $100  for  the  alleged  violation  of  sec- 
tion 6  of  the  Safetv  Appliance  Act  of  March  2,  1893. — SeverenSy 
a  J.,  p.  306. 
OUcago,  B.  &  Q.  By.  Go.  v.  U.  S.,  170  Fee..,  556. 

Circuit  Court  of  Appeals,  8th  Circuit,  April  24,  1909. 

This  is  not  a  criminal  case.  It  is  a  civil  action  in  the  nature 
of  the  action  of  debt  to  recover  a  penalty  which  Congress  in  its 
wisdom  saw  fit  to  impose  upon  railroads  to  secure  compliance 
with  certain  specified  regulations  made  to  promote  the  safety  of 
passengers  and  freight  carried  in  interstate  commerce  and  to 
protect  employees  engaged  in  that  service. — Adams,  C.  J.j 
pp.  557-558. 
V.  S.  V.  Chicago,  P.  cfc  St.  L.  Rv.  Co.  et  al,  143  Fed.,  353;  U.  S, 
V.  Atlantic  Coast  Line  R.  Co..  153  Fed.,  918:  U.  S.  v.  Illinois 
Central  R.  Co.,  170  Fed.,  542;  U.  S.  v.  St.  Louis  S.  W.  By  Co.  of 
Texas,  184  Fed.,  28. 

4.  The  Acts  are  to  be  construed  similarly  (a)  to  the  Customs  and  Reve- 
nue Laws ; 
Johnson  v.  Southern  Pacific  Co.,  196  U.  S.,  1. 
Supreme  Court,  December  19,  1904. 

But  the  design  to  give  relief  was  more  dominant  than  to 
inflict  punishment,  and  the  Act  might  well  be  held  to  fall  within 
the  rule  applicable  to  statutes  to  prevent  fraud  upon  the  revenue, 
and  for  the  collection  of  customs,  that  rule  not  requiring  absolute 
strictness  of  construction.  [Taylor  v.  TJ.  S.,  3  How.,  197;  TJ.  S. 
V.  Stoioell,  133  U.  S.  1, 12,  and  cases  cited;  F.  &  M.  Nat.  Banlc 
V.  Bearing,  91  U.  S.,  29,  35 ;  Gray  v.  BenneU,  3  Met.  (Mass.)  522].— 
Fuller,  Chief  Justice,  p.  17. 
TJ.  S.  V.  Southern  Ry.  Co.,  135  Fed.,  122;  TJ.  S.  v.  Great  Northern 
Ry.  Co.,  150  Fed.,  229;  U.  S.  v.  Chicago,  R.  7.  cfe  P.  Ry.  Co., 
173  Fed.,  684.  But  see  Atchison,  T.  c&  S.  F.  Ry.  Co.  v.  TJ.  S., 
172  Fed.,  194. 

— (b).  To  the  Hours  of  Service  Act; 

TJ.  S.  V.  Kansas  City  Southern  Ry.  Co.,  202  Fed.,  828.     See  also  U, 
S.  V.  >S'^.  Louis  S.  W.  Ry.  Co.  of  Texas,  189  Fed.,  954. 

— (c).  And  to  the  Pure  Food  and  Drugs  Acts: 
U.  S.  V.  Southern  Ry.  Co.,  135  Fed.,  122. 

District  Court,  Southern  District  of  Illinois,  March  2,  1905. 
.     It  [the  Act]  is  in  the  same  category  with  the  question  of  intent 
under  the  revenue  laws  and  of  good  laith  under  statutes  against 
handling    adulterated    goods,    drugs,    etc. — Humphrey,    B.    J., 
pp. 127-128. 
V.  S.  V.  Chicago,  M.  &  St.  P.  Ry.  Co.,  149  Fed.,  486. 

District  Court,  Southern  District  of  Iowa,  November  27,  1906. 

Such  an  attempt  to  distinguish  those  cases  from  the  one  at 

bar  is  not  an  answer.     Take  the  cases  for  violations  of  the  pure- 


22  SAFETY  APPLIANCE  ACTS. 


food  laws.     It  is  no  defense  for  the  seller  that  he  believed  the 
food  was  pure. —  McPherson,  D.  J.,  pp.  491-492. 

-(d).  But  they  are  not  in  pari  materia  with  the  Act  to  regulate  com- 
merce : 

V.  S.  V.  Colorado  ct'  A'.  W.  R.  Co.,  157  Fed.,  321. 

Circuit  Court  of  Appeals,  8th  Circuit,  November  2o,  1907. 
The  rule  in  pari  materia,  which  counsel  for  the  company  in- 
voke, the  rule  that  the  similar  terms  of  statutes  enactecl  for  Uke 
purposes  should  receive  like  interpretations,  is  inapplicable  to 
the  Interstate  Commerce  Act  and  the  Safety  Appliance  Acts, 
because  the  provision  of  the  latter  relative  to  the  question  be- 
fore us  is  plain  and  explicit, -and  a  statute  falls  under  that  rule 
only  when  its  terms  are  ambiguous  or  its  significance  is  doubtful 
[Endlich  on  Interpretation  of  Statutes,  sec.  .53,  p.  67],  and  because 
the  evils  to  be  remedied,  the  objects  to  be  accomplished,  and  the 
enactments  requisite  to  attain  them  are  radically  different. 
*  *  *  Neither  in  their  subjects,  in  the  mischiefs  they  were 
enacted  to  remove,  in  the  remedies  rec^uired,  nor  in  the  remedies 
provided  do  these  Acts  relate  to  similar  matters,  and  the  rule 
that  the  words  or  terms  of  acts  in  pari  matena  should  have  similai* 
interpretations,  ought  not  to  govern  their  construction. — San- 
horn,  C.  J.,  p.  330. 
See  also  Z7.  S.  v.  Colorado  db  N.  W.  R.  Co.,  157  Fed.,  342.    But  see: 

U.  S.  v.  Geddes,  131  Fed.,  452. 

Circuit  Court  of  Appeals,  6th  Circuit,  June  8,  1904. 

In  one  sense  the  two  Acts  are  in  pari  materia;  in  another,  not. 
Both  relate  to  the  regulation  of  commerce  among  the  States  under 
the  supervision  of  the  Interstate  Commerce  Commission.  The 
first  deals  largely  with  rates  and  fares — the  cost  of  the  commerce; 
the  second,  with  locomotives  and  cars — the  instrumentalities  used 
to  carry  it  on.  The  first  was  intended,  primarily,  to  protect  ship- 
pers; the  second,  railroad  employees;  both,  ultimately,  to  pro- 
mote the  best  interests  of  the  public.  In  each  Act  Congress  seeks 
to  regulate  commerce.  What  commerce?  Commerce  among 
the  several  States.  It  was  desirable,  therefore,  in  the  first  Act 
to  define  that  commerce.  Having  done  this  oiice,  it  was  suffi- 
cient in  the  second  Act  to  apply  its  provisions  to  carriers  ' '  engaged 
in  interstate  commerce,"  adopting  the  definition  of  the  first. — 
Richards,  0.  J .,  p.  455.  [Affirming  the  decision  of  the  District 
Court  for  the  Southern  District  of  Ohio  in  TJ.  S.  v.  Geddes,  180 
Fed.,  480.] 

Gray  v.  Louisville  cfc  N.  R.  Co.,  197  Fed.,  874. 

Circuit  Court,  Eastern  District  of  Tennessee,  April  3,  1912. 
Furthermore,  the  Hepburn  amendment  of  1906  to  the  Inter- 
state Commerce  Act  provides  that  the  term  ''railroad'"  as  used  in 
the  Act  shall  include ' '  all  the  road  in  use  by  any  corporation  operat- 
ing a  railroad,  whether  owned  or  ojjerated  undsr  a  contract  or 
agreement  or  lease,  and  shall  also  include  all  switches,  spurs, 
tracks  and  terminal  facilities  of  every  kind  used  or  necessary  in 
the  transportation  of  the  persons  or  property  designated  herein." 
In  TJ.  S.  V.  Geddes,  131  Fed.,  452,  it  was  held  by  the  Circuit  Court 
of  Appeals  for  this  Circuit  that  the  Interstate  Commerce  Act  and 


.  CONSTRUCTION  AND  INTERPRETATION.  23 


the  Safety  Appliance  Act  were  in  pari  materia  to  such  an  extent 
that  ths  definition  of  interstate  commerce  given  in  the  Interstate 
Commerce  Act  should  be  followed  in  construing  the  Safety  Appli- 
ance Act.  By  a  parity  of  reasoning  I  am  or  opinion  that  the 
definition  of  a  raikoad  ^ven  in  the  Hepburn  amendment  is  to 
such  extent  in  pari  materia  with  the  Safety  Appliance  Act  that  the 
fine  of  the  carrier's  railway  referred  to  m  tne  Safety  Appliance 
Act  should  be  construed  according  to  the  definition  of  a  railroad 
in  the  Hepburn  amendment  to  the  Interstate  Commerce  Act. — 
Sanfordj  D.  J .,  p.  876. 

(e).  And  are  distinguishable,  in  their  construction,  from  the  Employ- 
ers' Liability  Acts. 
U.  S.  V.   Wheeling  <&  L.  E.  R.  Co.,  167  Fed.,  198. 

District  Court,  Northern  District  of  Ohio,  June  16,  1908. 

But  much  more  may  be  said  in  favor  of  the  propriety  of  this 
legislation,  having  in  view  the  decision  of  the  Supreme  Court  in 
the  Employers'  Liability  Cases.  It  is  true  that  the  Supreme 
Court  in  that  case  held  the  Employers'  Liability  Act  unconsti- 
tutional, because  it  made  the  railroad  company  Hable  to  any  of 
its  employees,  without  restricting  the  liabihty  to  those  who  were 
engaged  in  interstate  commerce;  but  a  parity  of  reasoning  would 
not  require  that  we  should  say  the  same  thing  of  the  Safety 
AppUance  Act  because  it  refers  to  all  cars  used  on  any  railroad 
engaged  in  interstate  commerce.  It  seems  to  me  that,  in  the 
respect  complained  of,  there  is  no  analogy  between  the  decision  of 
the  Supreme  Court  in  the  Employers'  Liability  Cases  and  the 
theory  of  the  defendant's  counsel  as  to  the  constitutionaUty  of  the 
Safetv  Appliance  Act.  An  employee  of  a  railroad  company  en- 
gaged in  mterstate  commerce  does  not,  merely  because  he  is  such 
employee,  sustain  the  same  relation  to  interstate  commerce  as  a 
car  used  on  a  railroad  engaged  in  interstate  commerce  sustains  to 
interstate  commerce  on  that  road.  Certainly,  the  Federal  Govern- 
ment owes  no  duty  to,  and  has  no  authority  over,  an  employee  of  a 
railroad  which  is  engaged  in  interstate  commerce,  if  the  employee 
himself  is  not  engaged  in  the  work  of  interstate  commerce.  That 
employee  is  subject,  in  respect  to  his  relations  with  the  railroad 
company,  to  the  laws  of  the  State  in  which  the  service  is  per- 
formed. There  is  no  reason  why  the  power  of  the  State  should 
not  be  sufficient  for  his  protection,  or  why  the  Federal  Govern- 
ment should  interfere  with  respect  to  that  or  any  other  matter 
relating  to  that  employee  in  respect  to  his  work  with  the  railroad 
company,  so  long  as  it  does  not  relate  to  the  interstate  commerce 
of  the  company. 

But  this  is  not  true  of  a  car  used  by  a  railroand  engaged  in 
interstate  commerce.  All  of  the  cars  used  by  a  railroad  engaged  in 
interstate  commerce,  in  the  natural  course  of  their  use,  are  instru- 
mentahties  of  interstate  commerce;  whether  they  carry  inter- 
state traffic  themselves  or  are  hauled  in  a  train  which  contains 
interstate  traffic  the  effect  is  the  same.  They  stand  in  a  certain 
and  important  relation  to  that  interstate  commerce  over  which 
Congress  has  control;  and  it  is  quite  apparent  that  Congress,  in 
undertaking  to  determine  the  manner  in  which  interstate  com- 
merce shall  be  carried  on,  and  especially  in  making  effective  the 


24  SAFETY  APPLIANCE  ACTS. 


useful  and  beneficent  purpose  of  providing  for  the  safety  of 
employees,  would  necessarily  have  a  regard  lor  the  cars  which 
the  interstate-commerce  railroad  had  in  use.  And  thus,  discov- 
ering a  very  marked  and  practical  distinction  between  a  car  used 
by  an  interstate-commerce  railroad  and  a  person  in  the  employ 
of  an  interstate-commerce  railroad,  we  see  how  one,  in  the  nature 
of  things,  becomes  properly  the  subject  of  federal  legislation, 
while  the  other,  depending  upon  the  character  of  his  work,  may 
or  may  not  become  properly  the  subject  of  federal  legislation. — 
Tayler,  D.  J.,  pp.  200-201. 
Z7.  S.  V.  Southern  Ry.  Co.,  164  Fed.,  347.  But  see  North  Carolina 
R.  Co.  V.  Zachary,  232  U.  S.,  248,  260,  to  the  effect  that  the 
statutes  are  in  pari  materia. 

— Per  Contra: 

U.  S.  V.  Erie  R.  Co.,  166  Fed.,  352. 

6.  Whatever  constitutes  a  violation  of  the  Acts  in  a  personal  action 
for  damages  is  likewise  a  violation  in  an  action  for  the  statutory 
penalty. 
Atlantic  Coast  Line  R.  Co.  v.  V.  S.,  168  Fed.,  175. 

Circuit  Court  of  Appeals,  4th  Circuit,  March  1,  1909. 

The  Circuit  Court  of  Appeals  for  the  Eighth  Circuit,  in  the 
case  of  U.  S.  v.  Atchison,  T.  c&  S.  F.  Ry.  Co.,  163  Fed.,  517,  held 
that  the  duty  placed  upon  the  railroads  by  the  Act  is  the  same  in 
both  instances,  and  therefore  that  that  which  would  be  deemed 
a  violation  in  an  action  to  recover  for  personal  injuries  is  also  to 
be  deemed  a  violation  in  an  action  to  recover  the  statutory 
penalty. — Pritchard,  C.  J.,  p.  184. 
U.  S.  V.  Atchison,  T.  &  S.  F.  Ry.  Co.,  163  Fed.,  517. 

Circuit  Court  of  Appeals,  8th  Circuit,  August  22,  1908. 

Indeed,  a  survey  of  the  entire  statute  leaves  no  room  to 
doubt  that  all  violations  thereof  are  put  in  the  same  category, 
and  that  whatever  properly  would  be  deemed  a  violation  in  an 
action  for  personal  injuries  is  to  be  deemed  equally  a  violation 
in  an  action  to  recover  a  penalty. —  Van  Devanter,  C.  J.,  p.  518. 
[Cited  with  apparent  approval  in  Chicago,  B.&Q.  Ry.  Co.  v.  V.  S., 
220  U.  S.,  559.] 
But  see  proviso  in  section  4,  Act  April  14,  1910,  p.  91,  post. 

6.  A  violation  of  the  Acts  resulting  in  personal  injury  entails  two  pen- 
alties— one  of  $100.00  accruing  to  the  Government;  the  other  to 
the  employee  injured  by  reason  thereof,  in  the  abrogation  of  the 
defense  of  assumption  of  risk. 
TJ.  S.  V.  Atlantic  Coast  Line  R.  Co.,  153  Fed.,  918. 

District  Court,  Eastern  District  of  North  Carohna,  May  21, 1907. 
In  other  words,  whenever  a  carrier  uses  a  car  in  violation  of 
the  provisions  of  the  Act  the  United  States  shall  have  a  right  to 
the  penalty  of  $100  and  the  injured  employee  shaU  be  protected 
from  the  defense  of  ^'assumption  of  risk."  There  are.  therefore, 
two  penalties  fixed  upon  the  carrier.  One  is  the  $100  payable  to 
the  IJnited  States  and  the  other  is  the  denial  of  assumption  of 
risk  as  a  defense  when  sued  by  an  injured  employee. — rurneU, 
D.  J.,  p.  921. 


CONSTRUCTION  AND  INTERPRETATION.  25 


7.  In  a  prosecution  for  the  recovery  of   the  statutory  penalty,  the 
defendant  is  liable  as  to  each  and  every  car  used  or  hauled  in 
violation  of  the  Acts. 
St.  Louis  S.  F.  Ry.  Co.  v.  U.  S.,  183  Fed.,  770. 

Circuit  Court  of  Appeals,  5th  Circuit,  January  10,  1911. 

The  hauhng  by  any  carrier  engaged  in  interstate  commerce 
of  a  car  not  furnished  with  the  safety  appliances  required  by 
the  laws  of  the  United  States  is  a  violation  of  the  statute,  which 
entitles  the  United  States  to  recover  a  penalty  of  $100;  and  as 
this  penalty  attaches  for  each  and  every  such  violation,  it  is 
recoverable  for  each  and  every  car  not  furnished  with  the 
requisite  safety  appliances  hauled  in  violation  of  the  Act. 

Whether  the  hauling  be  of  several  cars  by  one  act  or  by 
several  acts  is  immaterial,  so  that  if  several  cars,  each  without 
the  requisite  appliances,  are  hauled  by  the  carrier  at  one  and 
the  same  time,  there  are  several  distinct  violations,  for  each  and 
every  of  which  the  penalty  is  due  and  recoverable. — Per  Curiam , 
pp.  770-771. 

U.  8.  V.  St  Louis  S.  W.  Ry.  Co.  of  Texas,  184  Fed.,  28. 

Circuit  Court  of  Appeals,  5th  Circuit,  December  13,  1910. 
The  defendant  contends  that  there  has  been  but  one  viola- 
tion of  the  Act,  and  that,  therefore,  the  court  ruled  correctly  in 
assessing  only  one  penalty.  The  contention  is  that  the  defend- 
ant "has  committed  only  one  act;  that  it,  by  one  act,  hauled 
three  cars,  in  one  movement,  not  equipped  with  safety  appli- 
ances as  required  by  law."  If  this  contention  is  well  founded,  a 
defendant  who  used  on  the  same  trip  a  defectively  equipped 
engine  and  a  defectively  equipped  car  could  be  made  to  pay  one 
penalty  only,  although  the  use  of  the  engine  is  made  unlawful 
by  section  1  and  the  use  of  the  car  by  section  2  or  4.  It  would 
also  follow  that  a  defendant  who  hauled  or  used  20  defective 
cars  could  not  be  made  to  suffer  a  larger  penalty  than  a  defend- 
ant who  hauled  or  used  only  one  defective  car.  It  is  difficult  to 
believe  that  such  was  the  intention  of  Confess.  The  words  of 
the  sections — 2  and  4 — designating  the  unlawful  act,  point,  it 
seems  to  us,  at  the  car  and  not  at  the  train.  It  is  made  unlaw- 
ful to  haul  or  use  "any  car."  If  it  had  been  made  unlawful  to 
haul  any  train  containing  a  car  or  cars  not  eq^uipped  as  required, 
it  is  easy  to  see  that  the  number  of  defective  cars  would  not 
increase  the  penalty.  But  the  Act  makes  the  haiding  or  use  of 
the  defective  car  the  unit  of  the  offense,  and  prescribes  the 
penalty  "for  each  and  every  such  violation."  The  hauling  or 
use  of  each  car  is,  it  is  admitted,  a  violation  for  which  the  penalty 
may  be  infhcted.  But  the  contention  is  that  the  hauling  or  use 
of  each  car  must  be  separate,  or  there  is  but  one  offense.  In 
view  of  the  purpose  of  the  Act  to  protect  life  and  Hmb  by  the 
enforced  equipment  of  every  car,  and  its  being  made  unlawful 
to  haul  or  use  any  car  not  equipped  as  required,  it  seems  to  us 
that  the  construction  contended  tor  by  the  defendant  is  so  nar- 
row as  to  defeat  the  intention  of  Congress.  If  the  three  defec- 
tive cars  had  been  hauled  or  used  by  the  same  engine,  but  only 
one  moved  at  a  time  at  intervals  of  one  minute  or  less,  it  is 


26  SAFETY  APPLIANCE  ACTS. 


not  denied  by  defendant's  contention  that  three  penalties  could 
be  recovered.  The  three  penalties  would  have  been  recovered 
for  the  reason  that  the  statute  makes  unlawful  the  hauling  or  use 
of  ''any  car,"  or  each  car  not  equipped  as  required.  It  seems 
strained  to  say  that  the  statute  requires  for  its  complete  appli- 
cation an  interval  and  that  the  condemnation  and  penalty  is  not 
the  same  if  the  three  cars  are  hauled  or  used  at  the  same  time. — 
Shelby,  a  J.,  p.  31. 

S.  In  a  prosecution  for  the   recovery  of  the  statutory  penalty,  the 
ownership  of  the  cars  involved  is  immaterial,  and  the  defendant 
is  liable  for  the  use  or  hauling  of  a  foreign  car  in  violation  of 
the  Acts;* 
U,  S.  V.  CUcago  Great  Western  Ry.  Co.,  162  Fed.,  775. 

District  Court,  Northern  District  of  Iowa,  May  6,  1908. 

It  appears  from  the  evidence  that  some  of  the  cars  alleged  to 
bave  been  hauled  or  used  by  the  defendant  in  violation  of  the  law 
were  not  its  own  cars,  but  were  the  cars  of  some  other  company. 
This  fact  is  wholly  immaterial.  If  such  cars  were  in  a  defective 
condition,  as  contended  on  behalf  of  the  plaintiffs,  no  matter  to 
whom  they  belonged,  the  defendant  would  incur  the  same  penalty 
in  hauling  such  cars  when  in  such  defective  condition  that  it 
would  if  they  were  its  own  cars. — Reed,  D.  J.,  p.  781. 
Crawford  v.  New  YorJc  Central  &  E.  R.  R.  Co.,  10  Am.  Neg.,  166. 
Supreme  Court  of  Westchester  Co.,  N.  Y.,  April  Term,  1901. 
Now,  the  defendant  says  it  was  not  the  owner  of  these  cars, 
and  counsel  has  argued  that  that  is  a  defense  to  the  action.  I 
say  to  you,  as  matter  of  law,  that  has  nothing  to  do  with  the 
cause  of  action  at  all.  It  does  not  matter  whether  the  defendant 
was  the  owner  or  not,  because  the  statute  prohibits  the  use  on  the 
Hne  of  the  road  or  the  permitting  to  be  hauled  on  the  Une  of  the 
road,  any  of  these  cars  not  equipped  as  the  statute  provides.  So 
that  if  they  permitted  to  be  hauled  or  used  on  their  roads  any  such 
cars,  even  though  they  belonged  to  other  companies,  they  would 
offend  against  this  provision  of  the  statute. — Dickey,  J.,  p.  169. 
JJ.  S.  V.  Pennsylvania  R.  Co.  [unreported]. 

District  Court,  Eastern  District  of  Pennsylvania,  March  18, 1908. 
It  was  not  one  of  its  owti  cars ;  it  was  a  car  belonging  to  the 
Boston  &  Albany  Railroad;  nevertheless,  that  makes  no  dififer- 
ence.  As  you  know,  railroads  are  continually  interchanging  cars, 
and  the  Act  of  Congress  makes  no  difference  between  cai-s  that 
are  owned  by  a  railroad  and  cars  that  come  upon  its  system  and 
are  hauled  by  it  over  its  rails. — McPJierson,  D.  J. 
Johnson  V.  Great  Northern  Ry.  Co.,  178  Fed.,  643;  Grand  TrunJc 
Western  Ry.  Co.  v.  Poole,  93  N.  E.,  26;  U.  S.  v.  Northern  Pacific 
Ry,  Co.,  D.  C,  W.  D.  Washington,  Dec.  5,  1913,  Cushman,  D.  J. 
[unreported.] 

*An  "M.  C.  B.  Defect  Card"  is  one  prescribed  by  the  Master  Car  Builders'  Associa- 
HoQ  as  notice  to  connecting  lines  of  the  existence  of  particular  defects  discovered 
IQ  the  car  to  which  it  is  affixed  at  the  time  of  its  receipt  in  interchange.  See  U.  S.  v. 
Southern  Ry.  Co.,  135  Fed.,  122. 

A  "Bad  Order  Card  "  is  one  affixed  to  a  car  by  a  company  inspector  to  indicate  that 
it  is  in  such  a  defective  condition  that  it  must  not  be  moved  except  for  the  purpose  of 
lepair.  Such  a  card  is  never  employed  as  notice  to  connecting  lines.  See  u.  S.  v. 
Ckicago,  R.  I.  rC:  P.  Ry.  Co.,  173  Fed.,  684. 


CONSTRUCTION  AND  INTERPRETATION.  27 


—  (a).  But  a  carrier  need  not  accept  defective  cars  from  a  connecting 
line. 

U.  S.  V.  Southern  Pacific  Co.,  1 67  Fed.,  699. 

District  Court,  NorthernDistrict  of  California,  December  4, 1908. 
A  railway  company  is  under  no  obligation  to  receive  from 
any  other  company  cars  defective  as  to  safety  appliances,  and 
when  it  does  receive  cars  from  another  company  at  any  point  it 
must  know  at  its  peril  that  each  car  so  received  is  equipped  with 
the  safety  appliances  required  by  law,  and  that  such  appliances 
are  in  good  order  and  condition. — De  Haven,  D.  J.,  p.  701. 

U.  S.  V.  Pennsylvania  R.  Co.  [unreported]. 

District  Court,  Eastern  District  of  Pennsylvania,  March  18, 1908. 
If  a  car  is  not  in  proper  operative  condition,  it  is  the  duty  of 
the  railroad  to  refuse  to  receive  it,  as  it  has  a  perfect  right  to  do. — 
McPherson,  D.  J. 

U.  S.  V.  Chicago,  M.  &  St.  P.  Ry.  Co.,  149  Fed.,  486.     See  also: 

That  when  any  person,  firm,  company,  or  corporation  engaged  in  in- 
terstate commerce  by  railroad  shall  have  equipped  a  suflB.cient  number 
of  its  cars  so  as  to  comply  with  the  provisions  of  section  1  of  this  Act,  it 
may  lawfully  refuse  to  receive  from  connecting  lines  of  road  or  shippers 
any  cars  not  equipped  suflBiciently,  in  accordance  with  the  first  section 
of  this  Act,  with  such  power  or  train  brakes  as  will  work  and  readily 
interchange  with  the  brakes  in  use  on  its  own  cars,  as  required  by  this 
Act.— Sec.  3,  Act  March  2,  1893  [27  Staf.  at  L.,  531]. 

9.  The  Amendment  of   1903    is  affirmative  and    declaratory  of  the 

original  Act. 

Johnson  v.  Southern  Pacific  Co.,  196  U.  S.,  1.  * 

wSupreme  Court,  December  19,  1904. 

As  we  have  no  doubt  of  the  meaning  of  the  prior  law,  the 
subsequent  legislation  can  not  be  regarded  as  intended  to  oper- 
ate to  destroy  it:  Indeed,  the  latter  Act  is  affirmative  and 
declaratory,  and,  in  effect,  only  construed  and  apphed  the  former 
Act. — Fuller,  Chief  Justice,  p.  21. 

ScMemmer  v.  Buffalo  R.  cfc  P.  Ry.  Co.,  205  U.  S.,  1. 
Supreme  Court,  March  4,  1907. 

The  later  Act  of  March  2,  1903,  enacting  that  the  provision 
shall  be  held  to  apply  to  all  cars  and  similar  vehicles,  may  be 
used  as  an  argument  on  either  side,  but  in  our  opinion  indicates 
the  intent  of  the  original  Act. — Holmes,  Justice,  p.  10. 

U.  S.  V.  Wheeling  &  L.  E.  R.  Co.,  167  Fed.,  198;  NorfolJc  <&  W. 
Ry.  Co.  V.  U.  S.,  177  Fed.,  623;  Galveston,  H.  dcS.A.Ry.  Co. 
V.  U.  S.,  199  Fed.,  891;  Chicago,  B.  cfc  Q.  Ry.  Co.  v.  TJ.  S.,  211 
Fed.,  12;  TJ.  S.v.  Pere  Marquette  R.  Co.,  211  Fed.,  220;  Devine 
V.  Illinois  Central  R.  Co.,  156  HI.  App.,  369;  Snyder  v.  Southern 
Ry.  Co.,  C.  C,  E.  D.  Tennessee,  Jan.  21,  1910,  Sanford,  D.  J. 
[unreported].    See  also  Southern  Ry.  Co.  v.  U.  S.,  222  U.  S.,  20. 

10.  A  custom  of  railroads  in  the  observance  of  practices  condemned  by 

the  Acts  does  not  excuse  their  violation. 
Pennell  v.  Philadelphia  &  R.  Ry.  Co.,  231  U.  S.,  675.     See  also 
Stearns  v.  Chicago  R.  I.  c&  P.  Ry.  Co.,  148  N.  W.,  128. 


28  SAFETY  APPLIANCE  ACTS. 


11.  The    Standardization   Order   of   the   Interstate   Commerce   Com- 

mission, made  in  pursuance  of  the  Act  of  1910,  is  persuasive  as  to 
the  meaning  of  the  statute. 
PenneU  v.  PJiiladelpJiia  &  R.  Ry.  Co.,  231  U.  S.,  675.     See  also 
Part  IV,  Item  7,  p.  198,  post. 

12.  Defective  cars  may  be  hauled  on  flat  cars  properly  equipped. 
V.  S.  V.  Chicago,  M.  8c  St.  P.  Ry.  Co.,  149  Fed.,  486. 

District  Court,  Southern  District  of  Iowa,  November  27,  1906. 
If  slight,  they  [repairs]  could  have  been  made  at  near-by 
points.  If  extensive,  and  which  could  be  made  only  at  Dubuque, 
then  the  evidence  without  conflict  shows  that  this  empty  box 
car,  with  the  trucks  detached  as  they  were,  could  easily  have  been 
placed  on  a  flat  car  properly  equipped.  And  all  the  witnesses 
who  testified  on  the  subject,  defendants  included,  say  that  such 
is  easily  and  often  done. —  McPherson,  D.  J.,  p.  490. 

C.  SCOPE  OF  THE  ACTS. 

1.  Provisions  of  the  Law : 

That  from  and  after  the  first  day  of  January,  eighteen  hundred  and 
ninety-eight,  it  shall  be  unlawful  for  any  common  carrier  engaged  in 
interstate  commerce  by  railroad  to  use  on  its  line  any  locomotive  engine 
in  moving  interstate  traffic  not  equipped  with  a  power  driving-wheel 
brake  and  appliances  for  operating  the  train-brake  system,  or  to  run 
any  train  in  such  trafBic  after  said  date  that  has  not  a  sufificient  num- 
ber of  cars  in  it  so  equipped  with  power  or  train  brakes  that  the  engi- 
neer on  the  locomotive  drawing  such  train  can  control  its  speed  without 
requiring  brakemen  to  use  the  common  hand  brake  for  that  purpose. — 
Sec.  ],  Act  March  2,  189S  [27  Stat,  at  L.,  531]. 

That  the  provisions  and  requirements  of  the  Act  entitled  "An  Act 
to  promote  the  safety  of  employees  and  travelers  upon  railroads  by 
compelling  common  carriers  engaged  in  interstate  commerce  to  equip 
their  cars  with  automatic  couplers  and  continuous  brakes  and  their 
locomotives  with  driving-wheel  brakes,  and  for  other  purposes," 
approved  March  second,  eighteen  hundred  and  ninety- three,  and 
amended  April  first,  eighteen  hundred  and  ninety-six,  shall  be  held  to 
apply  to  conunon  carriers  by  railroads  in  the  Territories  and  the  Dis- 
trict of  Columbia  and  shall  apply  in  all  cases,  whether  or  not  the 
Couplers  brought  together  are  of  the  same  kind,  make,  or  type;  and 
the  provisions  and  requirements  hereof  and  of  said  Acts  relating  to 
train  brakes,  automatic  couplers,  grab  irons,  and  the  height  of  draw- 
bars shall  be  held  to  apply  to  all  trains,  locomotives,  tenders,  cars,  and 
similar  vehicles  used  on  any  railroad  engaged  in  interstate  commerce, 
and  in  the  Territories  and  the  District  of  Columbia,  and  to  all  other 
locomotives,  tenders,  cars,  and  similar  vehicles  used  in  connection 
therewith,  excepting  those  trains,  cars,  and  locomotives  exempted  by 
the  provisions  of  section  six  of  said  Act  of  March  second,  eighteen  hun- 
dred and  ninety-three,  as  amended  by  the  Act  of  April  first,  eighteen 
hundred  and  ninety-six,  or  which  are  used  upon  street  railways. — Sec. 
1,  Act  March  2,  1903,  [32  Stat,  at  L.,  943.] 


SCOPE.  29 


(a).  "Railroad"  defined: 

U.  S.  V.  Union  Stock  Yards  Co.  of  Omaha,  161  Fed.,  919. 
District  Court,  District  of  Nebraska,  February  21,  1908. 
A  railroad  has  been  defined  as  a  road  or  way  on  which  iron 
rails  are  laid  for  wheels  to  run  on  for  the  conveyance  of  heavy 
loads  and  vehicles.     [Dinsmore  v.  Racine  M.  R.  Co.,  12  Wis.,  649.] 
Such  a  track  is  a  railroad  independently  of  the  use  made  of  the 
track  in  the  hauling  of  cars  over  it,  as  was  pointed  out  in  L.  S.  db 
M.  R.  Co.  V.  U.  S.,  93  U.  S.,  4:42.—  Munger,  D.  J.,  p.  923, 
See  also: 

*  *  *  The  term  "railroad,"  as  used  in  this  Act,  [Act  to  regulate  commerce] 
shall  include  all  bridges  and  ferries  used  or  operated  in  connection  with 
any  railroad,  and  also  all  the  road  in  use  by  any  corporation  operating 
a  railroad,  whether  owned  or  operated  under  a  contract,  agreement, 
or  lease,  and  shall  also  include  aU  switches,  spurs,  tracks,  and  terminal 
facilities  of  every  kind  used  or  necessary  in  the  transportation  of  the 
persons  or  property  designated  herein,  and  also  all  freight  depots, 
yards,  and  grounds  used  or  necessary  in  the  transportation  or  delivery 
of  any  of  said  property;  *  *  *.~Sec.  1,  Ad  February  4,  1887  [24  Stat,  at  L., 
379],  as  amended  June  29,  1906  [34  Stat,  at  L.,  584]. 

(b).  "  Common  carrier  "  defined : 
U.  S.  V.  Ramsey,  197  Fed.,  144. 

Circuit  Court  of  Appeals,  8th  Circuit,  May  27,  1912. 

"A  common  or  pubUc  carrier  is  one  who  by  virtue  of  his 
business  or  calling  undertakes,  for  compensation,  to  transport 
personal  property  from  one  place  to  another,  either  by  land  or 
water,  and  deliver  the  same,  for  all  such  as  may  choose  to 
employ  him;  and  every  one  who  undertakes  to  carry  and 
dehver,  for  compensation,  the  goods  of  all  persons  indifferently, 
is,  as  to  liability,  to  be  deemed  a  common  carrier." — [Moore  on 
Carriers,  p.  18]. —  Hunger,  D.  J.,  p.  146. 

— (i).  Eailroads  devoted  to  public  use  are  common  carriers. 

Union  Stock  Yards  Co.  of  Omaha  v.   U.  S.,  W9  Fed.,  404. 
Circuit  Court  of  Appeals,  8th  Circuit,  April  2,  1909. 

True  there  is  a  temporary  stoppage  of  the  loaded  cars  at  the 
transfer  track,  but  that  is  merely  incidental  and  does  not  break 
the  continuity  of  the  transit  any  more  than  does  the  usual  trans- 
fer of  such  cars  from  one  carrier  to  another  at  a  connecting  point. 
And  it  is  of  httle  significance  that  the  Stock  Yards  Company 
does  not  hold  itself  out  as  ready  or  willing  generally  to  carry  live 
stock  for  the  pubUc,  for  all  the  railroad  companies  at  South 
Omaha  do  so  hold  themselves  out  and  it  stands  ready  and  willing 
to  conduct,  and  actually  does  conduct,  for  hire  a  part  of  the 
transportation  of  every  live  stock  shipment  which  they  accept 
for  carriage  to  or  from  that  point,  including  such  shipments  as 
are  interstate. —  Van  Devanter,  C.  J.,  p.  406. 
U.  S.  V.  Union  Stock  Yards  Co.  of  Omaha,  161  Fed.,  919. 
District  Court,  District  of  Nebraska,  February  21,  1908. 

The  defendant,  having  chosen  to  devote  its  railroad  tracks 
to  a  public  use,  must  be  held  to  be  a  common  carrier. — MuvAier, 
D.J,,  p.  924.  ^ 

See  also  U.  S.  v.  Geddes,  131  Fed.,  452. 


30  SAFETY  APPLIANCE  ACTS. 


2.  The   Acts   apply   to   railroads    generally    engaged    in    interstate 
commerce : 
TJ.  8.  y.  Colorado  cfc  N.  W.  R.  Co,,  157  Fed.,  321. 

Circuit  Court  of  Appeals,  8th  Circuit,  November  25,  1907. 
Each  of  these  transportations  from  the  respective  points  in 
Missouri  and  Nebraska  to  the  places  of  consignment  of  the  goods 
in  Colorado  was  a  single  interstate  carriage  and  transaction  and 
the  Northwestern  Company,  by  reason  of  its  transportation  of 
these  and  like  shipments  through  a  part  of  their  interstate  car- 
riage, necessarily  became  a  ''common  carrier  engaged  in  inter- 
state commerce  by  railroad"  and  thus  fell  within  the  literal  terms 
and  the  ordinary  meaning  of  the  provision  of  the  Safety  Appli- 
ance Acts,  which  declare  that  it  shall  be  unlawful  for  ''  any  com- 
mon carrier  engaged  in  interstate  commerce  by  railroad  to  haul 
cars  used  in  moving  interstate  traffic  unequipped  with  automatic 
couplers." — Sanborn,  C.  J.,  p.  324. 
U.  S.  V.  Union  Stock  Yards  Co,  of  Omaha,  161  Fed.,  919;  V,  S.  v. 
Southern  Ry,  Co,,  164  Fed.,  347;  Wabash  R.  Co,  v.  V.  S,,  168 
Fed.,  1;  Bevine  v.  Chicago  cfe  C  R.  R.  Co.,  102  N.  E.,  803. 

Per  Contra: 

LouisvilU  iSc  N.  R.  Co.  v.  U.  S.,  186  Fed.,  280. 

Circuit  Court  of  Appeals,  6th  Circuit,  March  3,  1911. 

These  considerations  lead  us  to  the  conclusion  that  the  amendment  of 
1903  was  intended  to  be  a  regulation  of  railroads  while  they  are  engaged  in  inter- 
state commerce,  and  that  the  language  means  the  same  thing  as  if  tlie  word 
"when"  were  interposed  before  the  word  "engaged."  And,  indeed,  this  is 
not  a  forced  construction,  but  is  one  of  the  natural  constructions  wliich  the 
words  actually  used  would  bear,  for  "engaged"  might  with  equal  propriety 
refer  to  a  continuous  period  or  to  a  definite  time.  And  this  fact  would  found 
the  duty  of  adopting  the  latter  definition.  And,  so  construed,  the  statute  is 
relieved  of  the  objection  that  Congress  has  no  power  to  regulate  the  domestic 
commerce  of  a  State. — Severen^,  C.  /.,  p.  284. 
^  See  also  U.  S.  v.  Ene  R.  Co.,  166  Fed..  352. 
— (a).  And  courts  may  take  judicial  notice  of  the  fact  that  trunk-line 
railroads  are  generally  engaged  in  interstate  commerce. 

Shohoney  v.  Quincy,  0.  &  K.  C.  Ry.  Co.,  122  S.  W.,  1025. 
Supreme  Court  of  Missouri,  November  27,  1909. 

All  the  trunk-line  railroads  in  the  country  are  engaged  in 
interstate  commerce,  and  they  must  all  conform  to  the  acts  of 
Congress  passed  in  pursuance  of  the  federal   Constitution  on 
that  subject. —  Valliant,  J.,  p.  1036. 
State  V.  Missouri  Pacific  Ry.  Co.,  Ill  S.  W.,  500. 
Supreme  Court  of  Missouri,  June  6,  1908. 

May  we,  or  may  we  not,  take  judicial  notice  of  the  fact  that 
the  Missouri  Pacific  Railway  Company  is  engaged  in  interstate  as 
well  as  intrastate  commerce  ?  It  is  argued  on  behalf  of  the  State 
that  we  may  not  (absent  proof  or  allegation  in  the  indictment,  as 
here)  assume  defendant  is  so  engaged.  But  it  seems  to  us  we 
ought  not  to  allow  controlling  force  to  that  suggestion.  And 
this,  because  the  trend  of  the  judicial  mind  is  to  expand  the 
judicial  horizon  and,  as  decided  cases  ripen  into  precedents,  it  is 
made  manifest  that  the  list  of  things  of  which  courts  take  judicial 
notice  is  being  sensibly  added  to  by  growth.     For  instance,  in 


SCOPE.  31 


Kansas  City  v.  Scarritt,  169  Mo.,  485,  it  is  said:  ''Almost  anyone 
knows  that  a  burial  ground  does  not  enhance  the  value  oi  the 
surrounding  property,  and  there  is  no  reason  why  courts  should 
pretend  to  he  more  ignorant  than  the  rest  of  mankind.'' 

As  put  in  another  case,  Henry  County  v.  Salmon,  201  Mo.» 
161:  ''To  this  end  we  may  assume  a  knowledge  of  events  of 
current  public  history;  for  courts  ought  not  to  proceed  on  the 
theory  tney  do  not  know  what  everyone  else  does  know," 

It  was  said  in  State  ex  rel.  v.  Cool,  171  Mo.,  357-358:  ''1% 
is  a  fact  of  common  knowledge,  of  which  the  court  may  take 
cognizance,  that  in  1891  there  were  several  foreign  railroad  com- 
panies which  had  theretofore  approached  our  border  with  their 
roads  and,  under  the  express  leave  of  the  statute  above  quoted, 
had  extended  their  lines  mto  this  State,  some  crossing  it  from  one 
side  to  the  other,  some  penetrating  it  to  St.  Ix)uis,  and  some  to 
Kansas  City,  and  some  to  other  points.' 

If  now,  as  held  in  the  Coolc  Vase,  we  may  take  judicial  notice 
of  things  there  enumerated,  would  we  not  be  (to  borrow  an  in- 
spired metaphor — Matthew  xxiii,  24)  "blind  guides,  which  strain 
at  a  gnat  and  swallow  a  camel,"'  if  we  refused  to  take  judicial 
notice  of  the  patent  and  large  fact  that  defendant  is  now  and 
always  has  been  actively  engaged  in  interstate  commerce?  As 
pointed  out  by  defendant's  learned  counsel,  we  know  as  well  that 
defendant's  railroad  is  a  main- traveled  highway,  a  throbbing 
artery  of  commerce,  stretching  from  St.  Louis  on  the  eastern  line 
of  this  State  to  Kansas  City  on  the  western  line  and  away  into 
other  States,  as  we  know  that  the  Missouri  River  exists  as  a 
navigable  stream  and  takes  the  same  course. 

Let  us  look  at  it  from  another  point  of  view,  viz:  That  de- 
fendant has  the  charter  power  to  do  an  interstate  commerce 
business  no  one  would  question.  That  defendant  is  organized 
for  the  very  purpose  of  commercial  gain  as  a  common  carrier  no 
one  would  question.  Given  such  power  and  such  congenital  and 
organized  appetite  for  profit,  would  any  court  requu'e  proof  that 
defendant  was  using  such  power  and  appeasing  such  appetite  in 
ways  ready  to  its  hand  ?  As  well  (speaking  m  a  homely  way) 
require  a  solemn  allegation  or  proof  that  fishes  swim  or  that  birds 
fly  as  to  require  allegation  or  proof  that  a  gomg  railroad  cor- 
poration is  doing  what  it  was  born  to  do,  to  wit,  engage  in  inter- 
state commerce,  when  the  alluring  gains  of  such  traffic  are  spread 
like  a  feast  before  its  eager  corporate  eyes  and  nothing  is  nigh  to 
hinder. — Lamm,  J.,  p.  504. 

3.  The  Acts  apply  to  intrastate  railway  companies  that  participate  in. 
the  movement  of  interstate  traffic : 
Belt  Ry.  Co. ^  Chicago  v.  V.  S.,  168  Fed.,  542. 

Circuit  Court  of  Appeals,  7th  Circuit,  February  3,  1909. 
The  railroad  tracks  of  plaintiff  in  error  He  wholly  within 
Cook  County,  III.  There  are  21  miles  of  main  Une  and  about 
90  miles  of  switching  and  transfer  tracks.  The  main  line  con- 
stitutes a  belt  that  intersects  the  trunk  hnes  leading  into  Chi- 
cago. By  leads  and  Ys  direct  physical  connection  with  the 
trunk  lines  is  maintained.     Plaintiff  in  error's  business  consists 


Jg  SAFETY  APPLIANCE  ACTS. 


in  transporting  cars  between  industries  located  along  its  line, 
between  industries  and  trunk  lines,  and  between  trunk  lines. 
The  first  two  kinds  need  not  be  noticed  as  the  transportation 
here  involved  was  between  trunk  lines.  The  train  in  question 
contained  among  others  a  car  laden  with  lumber,  and  consigned 
from  a  point  in  Illinois  on  the  Chicago  &  Eastern  Illinois  to  a 
point  in  Wisconsin  on  the  Chicago  &  Northwestern.  This  car 
was  taken  by  plaintiff  in  error  from  the  tracks  of  the  Eastern 
Illinois  over  the  Belt  Line  and  put  on  the  tracks  of  the  North- 
western. For  services  of  this  kind  plaintiff  in  error  makes 
arbitrary  charges  of  so  much  a  car,  which  are  collected  monthly 
from  the  railroad  companies  for  which  the  services  are  rendered. 
In  such  operations  plaintiff  in  error  has  no  dealings  with  the 
shippers  and  pays  no  attention  to  the  class  of  traffic.  Its  rela- 
tion to  the  traffic  was  stated  by  the  general  superintendent  as 
follows:  "The  Belt  Company  acts  practically  as  an  agent  for 
the  trunk  lines  in  the  handling  of  cars  from  one  connection  to 
another  through  its  yards."     *     *     * 

We  are  of  opinion  that  the  transportation  in  question  [by 
the  Belt  Ry.  Co.]  was  the  same  in  legal  effect  as  if  the  Eastern 
Illinois  by  means  of  its  own  locomotive  and  track  had  put  the 
through  car  on  the  Northwestern's  track.  In  this  view  there 
was  evidence  from  which  the  inference  of  fact  might  warrantably 
be  drawn  by  the  jury  that  there  was  a  common  arrangement  for 
a  continuous  carriage  over  the  Eastern  Illinois  and  the  North- 
western; and  so,  with  respect  to  the  movement  in  question, 
plaintiff  in  error  was  engaged  in  interstate  transportation. — 
BaJcer,  0.  J.,  pp.  543-544,  545. 
U.  S.  v.  Northern  Pacific  Terminal  Co.,  144  Fed.,  861. 
District  Court,  District  of  Oregon,  April  2,  1906. 

When,   therefore,   the  Terminal  Company  is   engaged   in 
effecting  a  transfer  of  one  of  these  cars  from  one  line  of  railway 
to  another,  it  is  itself  engaged  in  hauling  a  car  used  in  moving 
interstate  traffic. —  Wolverton,  D.  J.j  p.  863. 
U.  S.  V.  Belt  Ry.  Co.  of  Chicago  [unreported]. 

District  Court,  Northern  District  of  Illinois,  January  23,  1908. 

The  question,  therefore,  presented  is  whether  the  Belt  Rail- 
way Company,  at  the  time  of  the  movement  of  the  train,  was 
engaged  in  interstate  commerce;  and  on  this  point  I  charge  you 
that  when  a  commodity  originating  at  a  point  in  one  State, 
destined  to  a  point  in  another  State,  is  put  aboard  a  car,  and 
that  car  begins  to  move,  interstate  commerce  has  begun,  and 
that  interstate  commerce  it  continues  to  be  until  it  reaches  its 
destination.  If,  therefore,  between  the  point  of  origin  of  this 
sliipment  and  the  point  of  destination,  the  car  in  which  it  is 
being  vehicled  passes  over  a  fine  of  track  wholly  within  a  city, 
within  a  county,  within  a  State,  the  railway  company  operating 
that  line  of  track  while  moving  such  car  is  engaged  in  inter- 
state commerce. — Landis,  D.J.  [Affirmed  by  the  Circuit  Court 
of  Appeals  for  the  7th  Circuit  in  Belt  Ry.  Co.  of  Chicago  v. 
U.  S.,  188  Fed.,  542,  ante.] 


SCOPE.  33 


— (a).  And  community  of  control,  management,  or  arrangement  with 
other  carriers  is  not  prerequisite  to  the  application  of  the  Acts  to 
such  traffic. 

V.  S.  V.  Colorado  dc  N.  W,  R.  Co.,  157  Fed.,  321. 

Circuit  Court  of  Appeals,  8tli  Circuit,  November  25,  1907. 
And  if  the  Congress  ''  should  be  intended  to  mean  what  they 
have  plainly  expressed''  they  must  have  meant  that  no  common 
carrier  engaged  in  such  commerce  by  railroad,  whether  its  rail- 
road was  long  or  short,  whether  it  was  within  one  or  many  States, 
whether  it  was  engaged  much  or  little  in  that  commerce,  and 
whether  it  operated  independently  or  under  a  common  control, 
management,  or  arrangement  with  some  other  carrier,  could 
lawfully  move  interstate  traffic  in  its  cars  without  first  equipping 
them  with  automatic  couplers,  for  so  the  Congress  plainly 
enacted.  *  *  *  The  amendatory  Act  of  June  29,  1906,  is  a 
demonstration  that  the  original  Act  was  not  intended  to,  and 
did  not,  regulate  all  common  carriers  engaged  in  interstate  com- 
merce by  railroad  within  the  power  of  Congress,  for  the  amend- 
ment applies  the  provisions  of  the  Act  to  common  carriers 
engaged  in  interstate  commerce  wholly  by  railroad  who  are 
exempt  from  any  common  control,  management,  or  arrange- 
ment with  other  carriers,  and  applies  its  provisions  to  many 
other  carriers  not  subject  to  the  terms  of  the  original  Act. — 
Sanborn,  C.  J.,  pp.  324-325,  329-330. 

U.  S.  V.  Colorado  db  N,  W.  R.  Co.,  157  Fed.,  342. 

Circuit  Court  of  Appe*als,  8th  Circuit,  November  25,  1907. 
Our  conclusion  is  that  a  common  carrier  which  operates  a 
railroad  entirely  within  a  single  State  and  transports  thereon 
articles  of  commerce  shipped  in  continuous  passages  from  places 
without  the  State  to  stations  on  its  road,  or  from  stations  on  its 
road  to  points  without  the  State,  is  subject  to  the  provisions  of 
the  Safety  Appliance  Acts,  although  it  carries  the  property  free 
from  a  common  control,  management,  or  arrangement  with 
another  carrier  for  continuous  carriages  or  shipments  of  the 
goods. — Sanborn,  C.  J.,  p.  345. 

— Per  Contra: 

U.  S.  V.  Geddes,  131  Fed.,  452;  Id.  v.  Id.,  180  Fed.,  480.     See  also  Belt  Ry.  Co.  of 

Chicago  v.  U.  S.,  168  Fed.,  542. 

4.  The  Acts  apply  to  interurban  electric  railway  companies  that 
participate  in  the  movement  of  interstate  traffic. 

Spolcane  &  I.  E.  R.  Co.  v.   V.  S.,  210  Fed.,  243. 

Circuit  Court  of  Appeals,  9th  Circuit,  January  5,  1914. 

There  is  testimony  to  the  effect — and  none  to  the  contrary — 
that  the  sharpness  of  the  curves  on  the  street  car  fine  is  such  as 
to  make  it  impossible  to  run  cars  over  that  fine  having  grab  irons 
or  handholds  on  the  end  of  the  cars .  Conceding  that  to  be  true,  it  is 
no  answer  to  the  Government's  action  if  the  Act  of  Congress  in 
question  is  applicable  to  the  company's  interurban  lines.  To 
hold  with  the  plaintiff  in  error  on  this  point  would  be  to  hold  that, 
because  the  company  uses  the  tracks  of  its  street  car  fines  for  a 
mere  trifle  of  the  distance  between  its  terminal  points  in  order  to 
50611—15 3 


34  SAFETY  APPLIANCE  ACTS. 


reach  the  center  of  the  city  of  Spokane,  its  entire  interurban  line, 
which  has  all  of  the  characteristics  in  build  and  operation  of  a 
standard  steam  road,  is  not  subject  to  the  Safety  Apphance  Act. 
That  would,  indeed,  be  a  case  of  'Hhe  tail  wagging  the  dog." 

We  are  of  the  opinion  that  the  Act  of  Congress  does  not  admit  of 
such  an  interpretation,  especially  in  view  of  the  manifest  purpose  of 
the  legislation.  The  exception  from  its  operation  of  cars  ''used 
upon  street  railways,"  we  think,  means,  ii  not  those  solely  used 
on  street  railways,  at  least  such  as  are  used  on  such  railways  in 
street  railway  traffic,  which  was  not  the  cas*^  here,  according  to  the 
testimony  of  the  company's  own  witnesses.    .*     *     * 

The  use  of  such  interurban  cars  as  we  have  here,  engaged  as 
they  are  in  intei-state  commerce,  for  a  comparatively  short  and 
relatively  inconsiderable  distance  on  a  street  railwaj^  in  order  to 
reach  the  city  terminus  of  the  company  handling  no  street  car 
business,  can  hardly  be  considered  an  intermingling  of  trafhc; 
but  if  so,  it  would,  in  our  opinion,  no  more  make  inappUcable  the 
Safety  Apphance  Act  to  the  interurban  Une  than  does  the  inter- 
mingling of  intrastate  wdth  interstate  traffic  defeat  the  power  of 
Congress  over  the  latter.  See  Baltimore  &  0.  R.  Co.  v.  /.  C.  (7., 
221  U.  S..  612;  Southern  Ry.  Co.  v.  U.  S.,  222  U.  S.,  20.— Ross, 
C.  J.,  p.  246.  [Affirming  the  judgment  of  the  District  Court 
for  the  Eastern  District  of  Washington  in  U.  S.  v.  Spolcane  <& 
I.  E.  R.  Co.,  206  Fed.,  988.] 

5.  A  car  hauled  or  used  by  one  carrier  ov^r  the  lines  of  another,  under 
a  contract  or  trackage  agreement,  is  hauled  or  used  ''on  the  line" 
of  the  operating  company,  within  the  purview  of  the  Acts. 
PMladelpJiia  cfc  R.  Ry.  Co.  v.  U.  S.,  191  Fed.,  1. 

Circuit  Court  of  Appeals,  3rd  Circuit,  November  6,  1911. 

There  was  abundant  evidence  tending  to  show  that  this  car 
and  the  train  of  which  it  was  a  part  was  a  car  and  train  in  the 
management  and  control  of  the  defendant  company,  in  the  con- 
duct of  its  interstate  traffic,  and  that  for  the  purposes  of  this  case, 
and  within  the  meaning  of  the  Act,  it  was  a  car  being  used  and 
hauled  in  the  conduct  of  such  traffic  on  the  fine  of  the  defendant 
company.  It  is  true  that  the  tracks  upon  which  the  evidence 
places  the  car  were  the  tracks  of  another  corporation,  to  wit,  the 
Central  Railroad  of  New  Jersey,  but  the  evidence  tends  to  show 
that  the  defendant  company  was  in  lawful  use  of  these  tracks  for 
the  conduct  of  its  interstate  traffic,  under  a  contract  with  the 
corporation  owning  the  same. 

The  fact  that  in  conducting  its  train  over  these  tracks  the 
defendant  company  did  so,  subject  to  such  rules  and  regulations 
of  the  other  company  as  were  necessary  for  the  safe  and  conven- 
ient conduct  of  its  business,  in  nowise  mihtates  against  the  prop- 
osition that  the  defendant  company  had  a  legal  right  to  the  use 
of  these  tracks,  and  that  during  such  use  they  were  properly  the 
line  of  the  defendant  company,  within  the  meaning  or  the  "Safety 
Appliance  Act."  It  was  therefore  in  violation  of  the  Act  that  it 
allowed  the  car  in  question  to  be  hauled  in  its  own  train,  in  the 
control  of  its  own  employees,  over  a  fine  upon  which  it  had  a  legal 
right  to  conduct  its  interstate  traffic.  Such  contracts  are  not 
unusual,  since  we  find  cases  in  the  books  arising  out  of  litigation 


SCOPE.  35 


concerning  such  agreements.  The  fact,  if  it  be  a  fact,  that  in 
this  case  the  inspection  of  the  cars  was  made  by  the  servants  of 
the  Central  Railroad  of  New  Jersey,  can  not  reUeve  the  defend- 
ant from  the  liabiHty  imposed  by  the  Act.  It  can  not  by  con- 
tract dispense  with  any  care  required  of  it  by  law,  and  the  most 
that  could  be  said  of  such  a  situation  would  be  that  it  had  volun- 
tarily made  the  inspectors  of  the  other  company  its  own. — Grdyi 
C.  J.,  p.  4. 
Gray  v.  Louisville  &  N.  R.  Co.,  197  Fed.,  874.  See  also  Devine  v. 
Chicago  ck  C.  JR.  R.  Co.,  102  N.  E.,  803;  and  definition  of  "miZ- 
road,^'  as  used  in  the  Act  to  regulate  commerce,  p.  29,  ante,  and 
as  used  in  the  Hours  of  Service  Act,  p.  121,  "post. 

6.  The  Acts  apply  to  all  railroads  participating,  and  to  all  vehicles 

hanled  or  used,  in  the  movement  of  commerce  within  the  Terri- 
tories of  the  United  States. 

v.  S.  V.  El  Paso  &  S.  W.  R.  Co.,  [unreported]. 

District  Court,  Second  District  of  Arizona,  January  30,  1907. 
The  plaintiff  in  this  case  in  each  instance  has  alleged  that 
the  car  alleged  to  have  been  handled  in  violation  of  the  Act  was 
''a  car  gene  rail  jr  used  in  the  movement  of  interstate  traflB.c,"  or 
'^was  engaged  m  moving  traffic  in  and  between  the  Territories 
of  the  United  States,'^  and  although  the  complaint  did  not  in  so 
many  words  allege  that  the  defendant  was  a  common  carrier 
engaged  in  interstate  commerce  by  railroad,"  it  did  allege  that 
it  was  "a  common  carrier  engaged  in  commerce- by  railroad 
among  the  several  Territories  of  the  United  States,  particularly 
the  Territories  of  Arizona  and  New  Mexico,"  which  allegation, 
under  the  provisions  of  section  1  of  the  Act  of  1903,  that  declares 
that  the  '' Safety  Appliance  Act"  shall  be  held  to  apply  to  com- 
mon carriers  by  railroad  in  the  Territories  and  the  District  of 
Columbia,  is  sufficient,  the  interterritorial  commerce  therein  al- 
leged being  equivalent  under  the  Act  of  1903  to  interstate  com- 
merce under  the  original  Act  of  March  2,  1893. — Doan,  D.  J. 

V.  S.  V.  Atchison,  T.  <&  S.  F.  Ry.  Co.  [unreported]. 

District  Court,  Fourth  District  of  Arizona,  July  17,  1908. 
Neither  is  it  Jiecessary,  in  case  of  a  prosecution  to  recovei 
the  penalty  for  a  violation  that  occurs  within  this  Territory, 
that  the  car  be  engaged  in  interstate  traffic.  It  is  sufficient 
under  section  1  of  the  amendment  of  1903  if  the  defective  car  be 
hauled  by  a  common  carrier  within  the  Territory,  even  though 
the  carrier  be  not  engaged  in  interstate  commerce,  provided  the 
car  does  not  come  within  the  exceptions  embraced  in  section  6 
of  the  original  Act  as  amended  April  1,  1896,  or  is  not  used  upon 
a  street  railway. — Sloan,  D.  J. 
.See  also  Stoutenhurgh  v.  HennicJc,  129  U.  S.,  141;  Hanley  v* 
Kansas  City  Southern  Ry.  Co.,  187  U.  S.,  617. 

7.  The  Acts  apply  to  all  cars  containing  interstate  traffic. 
Voellcer  v.  Chicago,  M.  cJ&  St.  P.  Ry.  Co.,  116  Fed.,  867. 

Circuit  Court,  Northern  District  of  Iowa,  June  16,  1902. 

Whenever  cars  are  designed  for  interstate  traffic,  the  com- 
pany  owning  or  using  them  is  bound  to  equip  them  as  required 


36  SAFETY  APPLIANCE  ACTS. 


by  the  Act  of  Congress;  and  when  it  is  shown,  as  it  was  in  this 
case,  that  a  railway  company  is  using  the  car  for  transportation 
purposes  between  two  States,  sufficient  is  shown  to  justify  the 
court  in  ruling  that  the  Act  of  Congress  is  apphcable  to  the 
situation. — Shiras,  D.  J.,  p.  874. 
U.  S.  V.  Northern  Pacific  Terminal  Co.,  144  Fed.,  861. 
District  Court,  District  of  Oregon,  April  2,  1906. 

The  fact  that  the  cars  in  question  were  at  the  time  caiTying 
a  commodity  that  had  been  shipped  from  one  State  into  or 
through  another  demonstrates  the  averment,  however,  that  it 
was  then  engaged  in  moving  interstate  traffic. —  Wolverton,  D.  J., 
p.  863. 
U,  S.  V.  Central  of  Georgia  Ry.  Co.,  157  Fed.,  893. 

District  Court,  Northern  District  of  Alabama,  Sept.  27,  1907. 
It  has  been  proven  in  this  case,  and  there  is  no  conffict  in  the 
evidence,  that  both  of  the  cars  in  question  were  carr^Tiig  traffic 
consigned  from  a  point  in  one  State  to  a  point  in  another  State. 
This  makes  such  traffic  interstate  traffic.  While  the  evidence 
does  not  show  that  the  defendant  hauled  the  car  across  the  State 
line,  still  the  defendant  is  engaged  in  interstate  traffic,  no  matter 
how  short  the  movement,  if  the  traffic  hauled  is  in  course  of 
movement  from  a  point  in  one  State  to  a  point  in  another. — 
Hundley,  D.  J.,  p.  894. 
U.  S.  V.  Wheeling  cfc  L.  E.  R.  Co.,  167  Fed.,  198. 

District  Court,  Northern  District  of  Ohio,  June  16,  1908. 
All  of  the  cars  used  by  a  raikoad  engaged  in  intei*state  com- 
merce, in  the  natural  course  of  their  use,  are  instrumentaUties  of 
interstate   commerce.     Whether    they   carry   interstate    traffic 
themselves  or  are  hauled  in  a  train  which  contains  interstate 
traffic,  the  effect  is  the  same. —  Tayler,  D.  J.,  p.  200. 
WinUer  v.  Philadelphia  &  R.  Ry.  Co.,  53  Atl.,  90. 
Superior  Court  of  Delaware,  June  10,  1902. 

If,  however,  the  car  being  moved  had  come  from  a  point 
out  of  the  State  with  freight  to  be  here  delivered,  it  would  be 
moving  interstate  commerce.  This  would  be  so  even  though  the 
car  to  which  the  tender  was  being  coupled  was  not  the  car  used 
in  interstate  traffic,  if  the  removal  of  such  car  was  a  necessary 
step  in  getting  at  and  moving  said  interstate  car. — Lore,  Ch.  J., 
pp.  91-92. 

8.  The  Acts  apply  to  all  cars  used  or  hauled  in  interstate  trains: 
U.  S.  Y.  International  <&  Great  Northern  R.  Co.,  174  Fed.,  638. 
Circuit  Court  of  Appeals,  5th  Circuit,  December  21,  1909. 
The  Act,  as  amended,  apphes  to  all  cars  and  trains  operated 
by  a  railroad  carrier  of  interstate  commerce  over  an  interstate 
railway,  irrespective  of  whether  the  defective  car  is  being  hauled 
from  one  point  to  another  in  the  same  State,  or  not,  it  being 
part  of  a  train  engaged  in  interstate  traffic. — Shelby,  C.  J.,p.  640. 
Chicago,  M.  <&  St.  P.  Ry.  Co.  v.  U.  S.,  165  Fed.,  423. 

Circuit  Court  of  Appeals,  8th  Circuit,  November  27,  1908. 
Our  conclusion  is  that  the  hauling  by  a  railroad  company 
from  one  State  to  another  of  a  car  not  equipped  with  the  re- 


SCOPE.  87 


quired  safety  appliances,  upon  its  own  trucks,  as  a  part  of  a 
train  of  other  cars  moving  in  interstate  commerce,  is  a  use  of 
the  defective  car  in  violation  of  the  Act  of  Congress,  though  it 
is  empty  and  is  being  transported  to  a  repair  shop  in  the  State 
of  its  destination  *  *  *.  The  car  in  question  was  one  of  the 
connecting  Unks  betw^een  the  engine  and  the  caboose  and  was  a 
constituent  part  of  a  train  movmg  on  an  interstate  mission.— 
Hoolc,  C.  J.,  pp.  424-425. 
V.  S.  V.  St.  Louis,  I.  M.  &  S.  Ry.  Co.,  154  Fed.,  516;  V.  S.  v.  Erie 
R.  Co.,  166  Fed.,  352;  U.  S.  v.  Wheeling  <&  L.  E.  R.  Co.,  167 
Fed.,  198;  U.S.  v.  Baltimore  &  0.  R.  Co.,  170  Fed.,  456;  V.  S. 
V.  Southern  Ry.  Co.,  170  Fed.,  1014;  Norfolk  cfc  W.  Ry  Co.  v. 
U.  S.,  177  Fed.,  623:  Hohenleitner  v.  Southern  Pacific  Co.,  177 
Fed.,  798;  Erie  R.  Co.  v.  Russell,  183  Fed.,  722;  V.  S.  v.  Western 
&  A.  R.  Co.,  184  Fed.,  336;  Louisville  &  N.  R.  Co.  v.  U.  S.,  186 
Fed.,  280;  Southern  Ry.  Co.  v.  Snyder,  187  Fed.,  492;  Southern 
Ry.  Co. -v.  Railroad  Com.  of  Ind.,  100  N.  E.,  337;  Breslcy  v.  Min- 
neapolis  dc  St.  L.  Ry.  Co.,  132  N.  W.,  337;  V.  S.  v.  Chesapealce  cfc 
0.  Ry.  Co.,  D.  C,  S.  D.  West  Virginia,  Dec.  2,  1908,  Keller, 
D.  J.  [unreported];  U.  S.  v.  Southern  Ry.  Co.  and  tl.  S.  v.  Atlantic 
Coast  Line  R.  Co.,  D.  C,  D.  South  Carolina,  Feb.  24,  1909, 
Brawley,  D.  J.  [unreported];  U.  S.  v.  Baltimore  &  0.  R.  Co.y 
D.  C,  S.  D.  Ohio,  June  10,  1909,  Sater,  D.  J.  [unreported]; 
TJ.  S.  V.  ToTedo  Terminal  R.  Co.,  and  U.  S.  v.  Baltimore  <&  0.  R, 
Co.,  D.  C,  N.  D.  Ohio,  June  15,  1909,  Cochran,  D.  J.  [unreported] . 
See  also  Thornhrov.  Kansas  City,M.  &  0.  Ry.  Co.,  139  Pac,  410. 
And  see  Johnston  v.  Chicago  Great  Western  Ry  Co.  164  S.  W., 
260,  with  respect  to  the  application  of  the  Acts  to  work  trains. 

(a).  "Haul"  defined: 

V.  S,  V.  St.  Louis,  L  M.  &  S.  Ry.  Co.,  154  Fed.,  516. 

District  Court,  Western  District  of  Tennessee,  June  11,  1906. 
To  '^hauJ"  means  (1)  to  ''drag  w^th  force  or  violence, 
to  puU,  to  draw,  to  tug,  to  drag;  (2)  to  carry  or  convey  in  a 
cart  or  other  vehicle."— Worcester's  Dictionary.  Defendant 
insists  that  the  word  '  'haul"  as  used  in  the  Act  of  Congress  takes 
the  second  definition  given  above — that  is,  to '  'carr}'  or  convey  in 
a  cart  or  other  vehicle" — that  is,  that  these  two  cars  must  have 
been  at  the  time  actually  in  use  conveying  commodities  of 
interstate  commerce.  Such  a  construction  woiild  so  far  negative 
the  purpose  of  the  Act  in  question  as  to  well-nigh  render  it  of 
no  practical  use. —  McCall,  D.  J.,  p.  518. 

(b).  "Used"  defined: 

TJ.  S.  V.  Spokane  &  L  E.  R.  Co.,  206  Fed.,  988. 

District  Court,  Eastern  District  of  Washington,  Sept.  17,  1912. 
The  term  "used"  means  "emploj^ed  for  a  purpose,"  and 
imports  a  certain  degree  of  permanence. 

Section  7  of  the  act  of  Congress  of  March  3,  1851,  entitled 
'  'An  act  to  limit  the  liability  of  shipowners  and  for  other  pur- 
poses," contained  the  following  exception  or  saving  clause :  "This 
act  shall  not  apply  to  the  owner  or  owners  of  any  canal  boat, 
barge,  or  lighter,  or  to  any  vessel  of  any  description  whatever 
used  in  rivers  or  inland  navigation." 


88  SAFETY  APPLIANCE  ACTS. 


And  in  construing  the  term  '^used"  in  Moore  v.  American 
Trans.  Co.,  24  How.,  1,  the  court  said:  ^'This  word  used  means, 
in  the  connection  found,  employed,  and  doubtless,  in  the  mind  of 
Congress,  was  intended  to  refer  to  vessels  solely  employed  in 
rivers  or  inland  navigation." — Rudkin,  D.  J.,  pp.  990-991. 

(c).  The  term   "Used"   is   of    broader  significance    than    the  word 
"Hauled:" 
U.  S.  v.  St.  Louis  S.  W.  Ry.  Co.  of  Texas,  184  Fed.,  28. 

Circuit  Court  of  Appeals,  5th  Circuit,  December  13,  1910. 
The  statute  foroids  hauling  and  using.  Why  were  both 
words  used?  If  the  car  was  fully  loaded  and  on  the  track 
ready  to  be  started  as  a  part  of  an  interstate  train,  with  engine 
attached  and  fired,  and  requiring  only  the  touch  of  the  engineer 
to  start,  would  not  the  car  be  ''used"  or  in  use,  within  the 
statute,  before  it  was  hauled  ?  If  it  was  without  the  automatic 
coupler,  so  that  the  brakeman  would  have  to  go  between  the 
cars  to  couple  them,  it  would  clearly  be  within  the  mischief  the 
statute  was  intended  to  prevent.  ''Used"  has  other  meanings 
than  "hauled."     It  is  a  broader  word. — Shelby,  C.  J.,  p.  .32. 

(d).  "Train"  defined. 

TJ.  S.  V.  Chicago  Great  Western  Ry.  Co.,  162  Fed.,  775. 

District  Court,  Northern  District  of  Iowa,  May  6,  1908. 

If  you  find  from  the  evidence  that  train  No.  73,  mentioned 
in  counts  7  and  8  and  in  coimts  9  and  10  of  the  petition,  was 
scheduled  to  run  regularly  as  one  train  between  Chicago  and 
Oelwein,  and  that  it  did  so  run  between  said  points  then  I  am 
of  the  opinion,  and  so  charge  you,  that  within  the  meaning  of 
this  law  it  was  but  a  single  train,  though  certain  of  the  cars  com- 
posing it  when  it  started  on  the  run  may  have  been  set  out  and 
others  placed  therein  at  different  stations  along  the  line;  and 
even  though  the  train  crew  and  the  engine  and  caboose  were 
changed  and  another  engine  and  another  crew  hauled  it  from 
Dubuque  to  Oelwein. — Reed,  D.  J.,  p.  780. 
TJ.  S.  V.  Boston  &  M.  R.  Co.,  168  Fed.,  148. 

District  Com-t,  District  of  Massachusetts,  January  5,  1909. 
By  "tram"  I  understand  one  aggregation  of  cai-s  drawn 
by  the  same  engine,  and  if  the  engine  is  changed  I  understand 
there  is  a  different  train. — Dodge,  D.  J.,  p.  153. 
TJ.  S.  V.  Grand  Trunk  Ry.  Co.  of  Canada,  203  Fed.,  775. 

District  Court,  Western  District  of  New  York,  March  8,  1913. 
In  Webster's  Dictionary  the  word  "train"  is  defined  as  a 
"connected  line  of  cars  or  carriages  on  a  railroad."  In  Detroit 
Street  Ry.  v.  MUls,  85  Mich.,  634,  it  is  stated  that  "a  train 
is  a  continuous  or  connected  line  of  cars  or  carriages  on  a  rail- 
road." In  Dacey  v.  Old  Colony  R.  Co.,  153  Mass.,  112,  and 
in  Carson  v.  B.  dfe  A.  R.  Co.,  164  Mass.,  523,  a  train  is  defined 
to  be  "a  locomotive  and  one  or  more  cars  coupled  together  and 
run  upon  a  railroad."  These  definitions  induce  the  belief  that 
Congress  in  enacting  the  Safety  Appliance  Act  used  the  word 
"tram",  in  the  ordinary  and  not  the  technical  sense  regardless  of 
the  varying  rules  and  practices  of  carriers. 


SCOPE.  39 


The  Supreme  Court  of  the  United  States  in  Johnson  v.  South- 
ern Pacific  By.  Co.,  196  U.  S.,  1,  supports  the  view  that  even 
though  the  statute  was  in  derogation  of  the  common  law,  it 
should  not  be  so  strictly  construed  as  to  defeat  the  purpose  of 
Congress,  and  it  was  there  held  that  locomotive  engines  are 
included  in  the  Act  under  the  words  ''any  car."  By  a  parity 
of  reasoning  the  words  ''any  train''  are  believed  to  clearly  in- 
clude all  trains  having  cars  coupled  together  and  locomotives 
drawing  them,  irrespective  of  whether  a  caboose  is  attached  or 
markers  displayed. — Hazel,  D.  J.,  p.  776. 
See  also  Erie  R.Co.  v.  U.  S.,  197  Fed.,  287;  U.  S.  v.  Pere  Mar- 
quette R.  Co.,  211  Fed.,  220;  La  Merev.Ry.  Trans.  Co.  of  Minne- 
apolis, 145  N.W.,  1068. 

9.  The  Acts  apply  to  all  cars  used  or  hauled  in  connection  with  inter- 
state cars: 
U.  S.  Y.- International  <&  Great  Northern  R.  Co.,  174  Fed.,  638. 
Circuit  Court  of  Appeals,  5th  Circuit,  December  21,  1909. 
'The  effect  of  the  amendment  is  to  apply  the  provisions  and 
requirements  of  the  Act  to  aU  cars  used  on  any  railroad  engaged 
in  interstate  commerce  and  to  all  other  cars  used  in  connection 
theTewith..— Shelly,  C.  J.,  p.  640. 
Chicago  Junction  Ry.  Co.  v.  King,  169  Fed.,  372. 

Circuit  Court  of  Appeals,  7tb  Circuit,  February  3,  1909. 
The  movement  tliat  was  intended  and  under  way  when  the 
plaintiff  was  caught  was  of  a  defective  interstate  car  in  connec- 
tion with  other  cars  on  an  interstate  highwav,  and  so  was  within 
the  letter  of  the  original  Act  of  1893  as  well  as  of  the  interpre- 
tative amendment  of  1903. — Balcer,  C.  J.,  p.  377. 
Chicago  cfc  N.  W.  Ry.  Co.  v.  TJ.  S.,  168  Fed.,  236. 

Circuit  Court  of  Appeals,  8th  Circuit,  March  10,  1909. 

Reading  these  two  statutes  [original  and  amended  Acts] 
together,  as  the^r  have  been  interpreted  by  the  courts,  thev 
include,  first,  vehicles  actually  moving  interstate  traffic;  second, 
such  vehicles,  though  empty,  when  moving  to  points  for  the 
purpose  of  receiving  interstate  traffic,  or  otherwise  commerciallv 
used  by  the  carrier;  and  third,  vehicles  used  in  connection  with 
vehicles  embraced  in  either  of  the  two  former  classes. — Amidonj 
D.  J.,  p.  237. 
U.  S.  V.  Chicago  dc  N.  IF.  Ry.  Co.,  157  Fed.,  616;  U.  S.  v. 
Chicago  Great  Western  Ry.  Co.,  162  Fed.,  775;  U.  S.  v.  Southern 
Pacific  Co.,  167  Fed.,  699;  Wabash  R.  Co.  v.  U.  S.  and  Elgin 
J.  cfc  E.  Ry.  Co.  V.  U.  S.,  168  Fed.,  1;  U.  S.  v.  Southern  Padfic 
Co.,  169  Fed.,  407;  Hohenleitner  v.  Southern  Pacific  Co.,  Ill 
Fed.,  796;  Campbell  v.  Spolane  <&  I.  E.  R.  Co.,  188  Fed.,  516; 
Southern  Ry.  Co.'y.  Snyder,' 205  Fed.,  868;  Felt  v.  Denver  db 
R.  G.  R.  Co.,  110  Pac,  215;  U.  S.  v.  Chesapeake  &  0.  R.  Co., 
D.  C,  S.  D.  West  Virginia,  Dec.  2, 1908,  Keller,  D.  J.  [unreported]: 
TJ.  S.v.  Southern  Ry.  Co.  and  U.  S.v.  Atlantic  Coast  Line  R.  Co., 
D.  C,  D.  South  Carohna,  Feb.  24,  1909,  Brawley,  D.  J.  [imre- 
ported];  U.  S:  v.  Baltimore  dc  0.  R.  Co.  and  U.  S.  v.  Toledo 
Terminal  R.  Co.,  D.C.,  N.  D.  Ohio,  June  15,  1909,  Cochran,  D.  J. 
[unreported];    TJ.  S.  v.  Southern  Pacific  Co.,  D.  C,  D.  Nevada, 


40  SAFETY  APPLIANCE  ACTS. 


Nov.  24,  1909,  Farrington,  D.  J.  [unreported].     But  see  Siegel 
V.  New  York  Central  &  H.  R.  R.  Co.,  178  Fed.,  873. 

— (a).  And  cars  so  hauled  or  nsed  in  connection  with  interstate  cars 
need  not  be  coupled  nor  contiguous  to  such  cars  in  order  to  come 
within  the  purview  of  the  Acts. 
Norfolk  dc  W.  Ry.  Co,  v.  U.  S.,  Ill  Fed.,  623. 

Circuit  Court  of  Appeals,  4th  Circuit,  March  4,  1910. 

Nor  do  we  think  it  can  be  successfully  contended,  as  sought 
to  be  done  by  the  fourth  proposition,  that  the  Act  does  not 
apply  to  a  car  containing  only  domestic  commerce,  although 
hauled  m  a  train  with  other  cars  containing  interstate  commerce, 
unless  it  be  coupled  to  a  car  containing  interstate  commerce. 
The  overw^helming  weight  of  authoritj"  is  against  such  conten- 
tion. [  TJ.  8.  V.  Erie  R.  Co.,  166  Fed.,  352 ;  ScUemmer  v.  Buffalo, 
R.  &  P.  Ry.  Co.,  205  U.  S.,  1 :  Walasli  R.  Co.  v.  TJ.  ^.,168  Fed., 
1 ;  Chicago,  M.  <&  St.  P.  Ry.  Co.  v.  U.  S.,  165  Fed.  423;  Chicago 
(&  N.  W.  Ry.  Co.  V.  U.  S.,'l68  Fed.,  2:6:  V.  S.  v.  Southern  Ry. 
Co.,  170  Fed.,  1014;  U.  S.  v.  Baltimore  cfc  0.  R.  Co.,  170  Fed., 
466.]— Dayton,  D.  J.,  p.  628. 
Louisville  d;  N.  R.  Co.  v.   U.  S.,  186  Fed.,  280, 

Circuit  Court  of  Appeals,  6th  Circuit,  March  3,  1911. 

Then,  further,  it  is  argued  that  the  ''connection"  of  the  car 
carrying  interstate  freight  which  the  Act  intends  is  an  immediate 
connection  with  cars  not  properly  equipped  and  that  there  was 
neither  allegation  nor  proof  tnat  these  conditions  existed. 
Because  the  Act  visits  a  penal  consequence  upon  its  violation  and 
of  other  considerations  which  we  need  not  dwell  upon,  there  was 
some  ground  for  argument  that  thelaw^shoidd  have  such  restricted 
operation.  But  the  trend  of  decision  in  the  circuit  courts  and  the 
circuit  courts  of  appeals  has  been  the  other  way,  and  is  to  the 
effect  that  the  connection  of  the  cars  in  a  train  is  not  required  to 
be  immediate,  and  we  are  not  so  far  convinced  that  those  deci- 
sions are  wrong  as  to  justify  us  in  holding  to  the  contrary. — 
Sever  ens,  C.  J.,  p.  284. 
V.  S.  V.  Western  c&  A.  R.  Co.,  184  Fed.,  336. 

District  Court,  Northern  District  of  Georgia,  December  1,  1910. 
It  seems  perfectly  clear  to  me,  and  such,  I  think,  is  the  effect 
of  all  decisions  that  have  been  rendered,  that  it  is  immaterial 
whether  the  car  wliich  is  engaged  in  interstate  commerce,  carry- 
ing an  interstate  shipment,  is  immediately  connected  with  the 
car  having  the  defective  appliance  or  not,  so  long  as  it  is  in  the 
same  train  of  cars. — Newman,  D.  J.,  p.  337. 
See  also  Item  8,  p.  36,  ante. 

— Per  Contra : 

U.S.w.  Illinois  Central  R.  Co.,  166  Fed.,  997. 

10.  The  Acts  apply  to  any  car  the  movement  of  which  is  necessary 
to  the  movement  of  an  interstate  car. 
Winkler  V.Philadelphia  &  R.  Ry.  Co.,  53  Atl.,  90. 
Superior  Court  of  Delaware,  June  10,  1902-. 

If,  however,  the  car  being  moved  had  come  from  a  point  out 
of  the  State,  with  freight  to  be  here  delivered,  it  would  be  moving 


SCOPE.  41 


interstate  commerce.  This  would  be  so  even  though  the  car  to 
which  the  tender  was  being  coupled  was  not  the  car  used  in  inter- 
state traffic,  if  the  removal  of  such  car  was  a  necessary  step  in 
getting  at  and  moving  said  interstate  car. — Lore,  CJi.J.,  pp.  91-92. 

11.  The  Acts  apply  to  all  cars  used  or  hauled  on  any  railroad  which 
is  a  highway  of  interstate  commerce. 
Southern  By.  Co.  v.   U.  S.,  222  U.  S.,  20. 
Supreme  Court,  October  30,  1911. 

The  real  controversy  is  over  the  true  significance  of  the  words 
''on  any  railroad  engaged"  in  the  first  clause  of  the  amendatory 
provision.  But  for  them  the  true  test  of  the  application  of  that 
clause  to  a  locomotive,  car,  or  similar  vehicle  would  be,  as  it  was 
under  the  original  Act,  the  use  of  the  vehicle  in  moving  interstate 
traffic.  On  the  other  hand,  when  they  are  given  their  natural 
signification,  as  presumptively  they  should  be,  the  scope  of  the 
clause  is  such  that  the  true  test  of  its  application  is  the  use  of  the 
vehicle  on  a  railroad  which  is  a  highway  of  interstate  commerce, 
and  not  its  use  in  moving  interstate  traffic.  And  so  certain  is 
this  that  we  think  there  would  be  no  contention  to  the  contrary 
were  it  not  for  the  presence  in  the  amendatory  provision  of  the 
third  clause  ''and  to  aU  other  locomotives,  tenders,  cars,  and 
similar  vehicles  used  in  connection  therewith."  In  this  there 
is  a  suggestion  that  what  precedes  does  not  cover  the  entire 
field,  but  at  most  it  is  only  a  suggestion  and  gives  no  warrant 
for  disregarding  the  plain  words  "on  any  railroad  engaged" 
in  the  first  clause.  True,  if  they  were  rejected,  the  two  clauses, 
in  the  instance  of  a  train  composed  of  many  cars,  some  moving 
interstate  traffic  and  others  moving  intrastate  traffic,  would  by 
their  concurrent  operation  bring  the  entire  train  within  the 
statute.  But  it  is  not  necessary  to  reject  them  to  accomplish 
this  result,  for  the  first  clause,  with  those  words  in  it,  does  even 
more ;  that  is  to  say,  it  embraces  every  train  on  a  railroad  which 
is  a  highwaj^  of  interstate  commerce  mthout  regard  to  the  class 
of  traffic  which  the  cars  are  moving.  The  two  clauses  are  in  no 
wise  antagonistic,  but,  at  most,  only  redundant,  and  we  perceive 
no  reason  for  believing  that  Congress  intended  that  less  than  full 
effect  should  be  given  to  the  more  comprehensive  one,  but,  on  the 
contrary,  ^ood  reason  for  believing  otherwise.  As  between  the 
two  opposing  views,  one  rejecting  the  words  "on  any  railroad 
engaged"  in  the  first  clause  and  the  other  treating  the  third 
clause  as  redundant,  the  latter  is  to  be  preferred,  first,  because  it 
is  in  accord  with  the  manifest  purpose,  shown  throughout  the 
amendatory  Act,  to  enlarge  the  scope  of  the  earlier  one  and  to 
make  it  more  effective,  and,  second,  because  the  words  which  it 
would  be  necessary  to  reject  to  give  effect  to  the  other  view  were 
not  originally  in  the  amendatory  Act,  but  were  inserted  in  it  by 
way  of  amendment  while  it  was  in  process  of  adoption  [Cong. 
Rec,  57th  Cong.,  1st  Sess.,  vol.  35,  pt.  7,  p.  7300;  id.,  2d  Sess., 
vol.  36,  pt.  3,  p.  2268],  thus  making  it  certain  that  without  them 
the  Act  would  not  express  the  will  of  Congress. 


42  SAFETY  APPLIANCE  ACTS. 


For  these  reasons  it  must  be  held  that  the  original  Act  as 
enlarged  by  the  amendatory  one  is  intended  to  embrace  all  loco- 
motives, cars,  and  similar  vehicles  used  on  any  railroad  which  is 
a  highway  of  interstate  commerce. —  Van  Devanter,  Justice, 
pp.  24-25-26.  [Aflfirming  the  judgment  of  the  District  Court  for 
the  Northern  District  of  Alabama  in  U.  S.  v.  Southern  Ry.  Co.,  164 
Fed.,  347.] 
Brinkmeier  v.  Missouri  Pacific  Ry.  Co.,  224  U.  S.,  268;  ]]^hash 
R.  Co.  v.  U.  S.Sind  Elgin,  J.  &  E.  Ry.  Co.  v.  V.  S.,  168  Fed., 
1;  Southern  Ry.  Co.  v.  Railroad  Com.  of  Ind.,  100  N.  E.,  337; 
Devine  v.  Chicago  d)  C.  R.  R.  Co.,  102  N.  E.,  803;  Missouri 
Pacific  Ry.  Co.  v.  BrinJcmeier,  93  Fac,  621;  Brinhmeier  v. 
Missouri  Pacific  Ry.  Co.,  105  Pac,  221;  Felt  v.  Denver  &  R. 
G.  R.  Co.,  110  Pac,  215;  Burho  v.  Minneapolis  &  St.  L.  Ry.  Co., 
141  N.  W.,  300;  Popplar  v.  Minneapolis,  St.  P.  &  S.  S.  M.  Ry. 
Co.,  141  N.  W.,  798;  Stearns  v.  Chicago,  R.  I.  <&  P.  Ry.  Co.,  148 
N.  W.,  128;  Devine  v.  Illinois  Central  R.  Co.,  156  III.  App.  369; 
V.  S.  V.  Northern  Pacific  Ry.  Co.,  D.  C,  W.  D.  Washington, 
Dec.  6,  1913,  Cushman,  D.  J.  [unreported].  See  also  Southern 
Ry.  Co.  V.  Croclcett,  234  U.  S.,  725;  Thomhro  v.  Kansas  City, 
M.  &  0.  Ry.  6^0.,  139  Pac,  410;  Johnstonv.  Chicago  Great  West- 
em  Ry.  Co.,  164  S.  W.,  260. 

Per  Contra: 

U.  S.  V.  Erie  R.  Co.,  166  Fed.,  352.  See  also  Siegel  v.  New   Yorh  Central  <5e  H. 
R.R.  Co.,  178  Fed.,  873;  Lulen  v.  Lake  Shore  <k  M.  S.  Ry.  Co.,  94  N.  E.,  175. 

12.  The  Acts  apply  to   all   cars   regularly  ased   in   interstate  com- 
merce. 
Johnson  V.  Southern  Pacific  Co.,  196  U.  S.,  1. 
Supreme  Court,  December  19,  1904. 

Confessedly  this  dining  car  was  under  the  control  of  Congress 
while  in  the  act  of  making  its  interstate  journey,  and  in  our 
judgment  it  it  was  equally  so  when  waiting  for  the  train  to  be 
made  up  for  the  next  trip.  It  was  being  regularly  used  in  the 
movement  of  interstate  traffic  and  so  within  the  law. — Fuller, 
Chief  Justice,  p.  22. 
Wheeling  Terminal  Ry.  Co.  v.  Russell,  209  Fed.,  795. 

Circuit  Court  of  Appeals,  4th  Circuit,  December  8,  1913. 
The  cars  had  been  employed  in  interstate  commerce.     It 
was  not  shown  that  they  had  been  withdrawn  from  its  service. 
The  reasonable  presumption,  therefore,  is  that  thej^  remained  in 
it.     In  practice  such  presumption  will  not  work  injustice.     The 
defendant  carrier  will  usually  have  Httle  difficulty  in  showing, 
when  it  wishes  to  do  so,  where  the  cars  were  to  be  taken  and  for 
what  purpose.     For  the  plaintiff  to  trace  them  may  be  difficult 
and  expensive. — Rose,  D.  J.,  p.  799. 
Wabash  R.  Co.  v.  U.  S.;  Elgin,  J.  &  E.  Ry.  Co.  v.  U.  S.,  168  Fed.,  1- 
Circuit  Court  of  xAppeals,  7th  Circuit,  February  3,  1909. 

It  is  not  reasonable  to  suppose  that  Congress  intended  to 
cover  only  the  smaller  part  of  the  dangers;  and  since  the  lan- 
guage employed  is  entirely  consistent  with  the  larger  meaning, 
section  2  of  the  Act  of  1893  should  be  held  to  forbid  an  interstate 
carrier  from  haufing  or  using  on  its  line  any  car  that  is  custom- 


SCOPE.  43 


arily  or  generally  employed  in  moving  interstate  traffic,  and 
that  is  not  equipped  with  automatic  couplers,  even  though  at  the 
particular  time  the  car  be  empty  or  be  moving  intrastate  traffic. — 
Baker,  C.  J.,  p.  3. 

Snead  v.  Central  of  Georgia  Ry.  Co.,  151  Fed.,  608. 

Circuit  Court,  Southern  District  of  Georgia,  March  25,  1907. 
While  the  original  Safety  AppHance  Act  made  it  unlawful 
for  common  carriers  engaged  in  mterstate  commerce  to  haul 
cars  not  properly  equipped  when  ^'used  in  moving  interstate 
traffic,"  the  amendatory  Act  of  1903  declared  that  the  ori^nal 
provisions  should  be  held  to  apply  to  **all  trains,  locomotives, 
tenders,  cars,  and  similar  vehicles  used  on  any  railroad  engaged 
in  interstate  commerce."  Obviously,  this  was  an  explicit  recog- 
nition hj  Congress  of  its  constitutional  right  to  control  the  instru- 
mentaUties,  and  prescribe  conditions  for  all  interstate  common 
carriers.  This  is  also  the  construction  given  in  the  recent  case  of 
U.  S.  V.  Great  Northern  Ry  Co.,  145  Fed.,  438,  where  the  court 
held  that  the  amended  Act  applied  to  all  cars  regularly  used  on 
any  railroad  engaged  in  interstate  commerce,  not  only  while 
actually  in  use  in  such  commerce,  but  at  all  times  when  in  use  on 
such  road. — Speer,  D.  J.,  pp.  624-625. 

U.  S.  V.  Northern  Pacific  Terminal  Co.,  144  Fed.,  861. 
District  Court,  District  of  Oregon,  April  2,  1906. 

It  makes  but  little  difference,  therefore,  whether  the  car 
contained  at  the  time  any  commodity  being  carried  as  freight 
or  not,  if  the  car  was  one  being  used  in  moving  interstate  traffic, 
not  in  the  sense  that  at  the  particular  time  it  was  going  loaded 
or.partially  so  with  a  commodity  being  shipped  from  one  State  into 
another  or  others,  but  that  it  was  being  employed  in  a  service 
that  was  moving  interstate  traffic. —  Wolverton,  D.  J.,  p.  863. 

Z7.  S.  V.  .S'^.  Louis,  I.  M.  &  S.  Ry.  Co.,  154  Fed.,  516. 

District  Court,  Western  District  of  Tennessee,  June  11,  1906. 
The  phrase  ''used  in  moving  interstate  traffic"  does  not  only 
mean  that  the  car  must  be  actually  loaded  with  interstate  traffic 
and  on  its  journey  from  State  to  State  at  the  time  of  the  alleged 
violation,  but  its  more  natural  meaning  is  that  it  is  a  car  that 
has  been  used  for  such  purpose,  stands  ready,  and  is  intended 
to  be  used  for  such  purpose  whenever  needed. — McCall,  D.  J., 
p.  518. 

U.  S.  V.  Chicago  cfc  N.   W.  Ry.  Co.,  157  Fed.,  616. 

District  Court,  District  of  Nebraska,  December  30,  1907. 
It  [the  amendment  of  1903]  left  no  room  for  a  distinction 
between  the  hauling  of  a  car  actually  engaged  in  interstate  com- 
merce and  the  haiding  of  a  car  which  is  generally  used  in  moving 
interstate  commerce,  although  not  actually  so  engaged  at  the 
time  when  the  offense  is  charged  as  being  committed. — Hunger, 
D.  J.,  p.  617. 

U.  S.  V.   Wheeling  &  L.  E.  R.  Co.,  167  Fed.,  198. 

District  Court,  Northern  District  of  Ohio,  June  16,  1908. 
Endless  confusion  woiUd  arise  if  any  distinction  was  made 
under  such  conditions  between  a  car  loaded  with  interstate 


44  SAFETY  APPLIANCE  ACTS. 


traffic  and  an  empty  car  regularly  used  in  the  movement  of 
interstate  traffic  but  at  the  time  unloaded  and  coupled  to  an- 
other car  actually  in  use  in  the  movement  of  interstate  traffic. 
Of  course  the  same  thing  must  be  said  of  the  loaded  car,  what- 
ever the  character  of  the  freight  it  carried,  if  it  is  a  car  regularly- 
used  in  the  movement  of  interstate  traffic. —  Tayler,  D.  J.,  pp. 
201-202. 
Hoherdeitner  Y .  Southern  Pacific  Co.,  177  Fed.,  796;  CampheU  v. 
Spolcane  &  I.  E.  R.  Co.,.  188  Fed.,  516;  Felt  v.  Denver  c& 
R.  G.  R.  Co.,  110  Pac,  215;  Devine  v.  Illinois  Central  R.  Co., 

156  111.  App.,  369;  Snyder  v.  Southern  Ry.  Co.,  C.  C,  E.  D. 
Tennessee,  Jan.  21,  1910,  Sanford,  D.  J.  [unreported]. 

Per  Contra: 

Johnson  v.  Southern  Pacific  Co.,  117  Fed.  462. 

13.  The  Acts  apply  to  empty  cars: 

Johnson  V.  Southern  Pacific  Co.,  196  U.  S.,  1. 
Supreme  Court,  December  19,  1904. 

Besides,  whether  cars  are  empty  or  loaded,  the  danger  to 
employees  is  practically  the  same,  ana  we  agree  with  the  observa- 
tion of  District  Judge  Shiras  in  Voelker  v.  nailway  Company,  116 
Fed.,  867,  that  '4t  can  not  be  true  that  on  the  eastern  trip 
the  provisions  of  the  Act  of  Congress  would  be  binding  upon  the 
company,  because  the  cars  wore  loaded,  but  would  not  be  binding 
upon  the  return  trip,  because  the  cars  are  empty." — Fuller,  Chief 
Justice,  pp.  21-22. 
North  Carolina  R.  Co.  v.  Zachary,  232  U.  S.,  248;  Voellcer  v, 
Chicago,  M.  cfc  St.  P.  Ry.  Co.,  116  Fed.,  867;  U.  S.  v.  Northern 
Pacific  Terminal  Co.,  144  Fed.,  861;  V.  S.  v.  St.  Louis,  I.  M, 
<&  S.  Ry.  Co.,  154  Fed.,  516:  U.  S.  v.  Chicago  cfc  N.  W.  Ry.  Co., 

157  Fed.,  616;  Z7.  S.  v.  Louisville  <&  N.  R.  Co.,  162  Fed.,  185;  6%^- 
cago,M.  ck  St. P. Ry.  Co. v.  U.S., 165¥ed.,42S:  U.S.v.  Wheeling  c& 
L.  E.R.  Co. ,167¥e.d., 198;  WahashR.Co.v.  U.  8.,  and  Elgin,  J.  ii)E. 
Ry.  Co.  V.  U.  S.,  168  Fed.,  1 ;  Chicago  cfe  N.  W.  Ry.  Co.  v.  U.S.,  168 
Fed.,236;  U.S.  v.  Southern  Ry.  Co.,  170¥ed.,10U;  U.S. v. Inter- 
nxitional  dc  Great  Northern  R.  Co.,  174  Fed.,  638;  Hohenleitner  v. 
Southern  Pacific  Co.,  Ill  Fed.,  796;  Southern  Ry.  Co.  v.  Snyder, 
187  Fed.,  492;  Campbell  y.  Spolcane  cfc  /.  E.  R.  Co.,  188  Fed.,  516; 
Felt  V.  Denver  (&  R.  G.  R.  Co.,  110  Pac,  215;  Lulcenv.  Lalce 
Shore  &  M.  S.  Ry  Co.,  94  N.  E.,  175;  U  S.  v.  Atchison,  T.  <& 
S.  F.  Ry.  Co.,  D.  C.  Arizona,  July  17,  1908,  Sloan,  D.  J.  [unre- 
ported]; U.  S.  V.  ChesapeaJce  &  0.  Ry  Co.,  D.  C,  S.  D.  West 
Virginia,  Dec.  2,  1908,  Keller,  D.  J.  [unreported];  Snyder  v. 
Southern  Ry.  Co.,  C.  C,  E.  D.  Tennessee,  Jan.  21,  1910,  Sanford, 
D.  J.  [unreported].  See  dl^o  Johnson  v.  Great  Northern  Ry.  Co., 
178  Fed.,  643;  Siegel  v.  New  Yorlc  Central  cfc  H.  R.  R.  Co.,  178 
Fed.,  873;   MaUott  v.  Hood,  66  N.  E.,  247. 

Per  Contra: 

Johnson  v.  Southern  Pacific  Co.,  117  Fed.  462. 


SCOPE.  45 


(a).  The  hauling  of  a  car  itself  is  commerce  within  the  purview  of 
the  Acts. 
Z7.  S.  V.  Chicago  &  N.  W-  %•  (^o,,  157  Fed.,  616. 

District  Court,  District  of  Nebraska,  December  30,  1907. 
The  mere  hauling  of  the  car  itseK  was  engaging  in  commerce. 
If  the  car  was  taken  apart  and  loaded  upon  another  car  and 
hauled  by  it,  no  question  could  be  made  that  it  would  constitute 
commerce  as  much  as  if  the  car  was  loaded  with  wheels  or  rails 
or  ties  for  use  by  the  raih'oad. —  Hunger,  D.  J.,  p.  619. 

14.  The  Acts  apply  to  all  cars  commercially  used  by  an  interstate 
carrier ; 
Chicago  c&  N.  W.  Ry.  Co.  v.  U.  S.,  168  Fed.,  236. 

Circuit  Court  of  Appeals,  8th  Circuit,  March  10,  1909. 

Reading  these  statutes  [original  and  amended  Acts]  together, 
as  they  have  been  interpreted  by  the  courts,  they  include,  first, 
vehicles  actually  moving  interstate  traffic;  second,  such  vehicles, 
though  empty,  when  moving  to  points  for  the  purpose  of  receiv- 
ing interstate  traffic,  or  otherwise  conmaercially  used  hj  the  car- 
rier; and  third,  vehicles  used  in  connection  with  vehicles  em- 
braced in  either  of  the  two  former  classes. — Amidon,  D.  J.,  p.  237. 
U.  S.  y.  Southern  Pacific  Co.,  169  Fed.,  407. 

Circuit  Court  of  Appeals,  8th  Circuit,  April  3,  1909. 

As  a  corollary  to  the  classification  so  made  [in  C.  cfc  N.  W. 
Ry.  Co.  V.  U.  S.,  168  Fed.,  236]  we  reached  and  stated  the 
conclusion  that  any  movement  of  vehicles  after  they  became 
defective,  for  the  purpose  of  repairing  them,  must,  in  order  to 
escape  the  penalties  imposed  by  the  Act,  be  'VhoUy  excluded 
from  commercial  use  themselves,  and  from  other  vehicles  which 
are  commercially  employed." — Adams,  C.  J.,  p.  409. 
See  also  Southern  Ry.  Co.  v.  Snyder,  187  Fed.,  492;  Southern  Ry, 
Co.  V.  Snyder,  205  Fed.,  868;  and  Item  11,  p.  41,  ante. 

—  (a).  And  cars  used  or  hauled  by  an  interstate  carrier  for  the  trans- 
portation of  its  own  products  or  property  are  commercially  used 
within  the  purview  of  the  Acts. 
U.  S.  y.  Chicago,  M.  <&  St.  P.  Ry.  Co.,  149  Fed.,  486. 

District  Court,  Southern  District  of  Iowa,  November  27,  1906. 
Another  defense  pleaded  is  that,  as  the  company  was  haul- 
ing its  own  rails,  and  would  receive  no  compensation,  it  was  not 
engaged  in  commerce  or  traffic.  That  is  to  sav,  that  construc- 
tion trains  with  cars  both  hauled  and  used,  both  locally  and 
across  state  lines,  and  cars  hauled  and  used,  as  just  stated,  for 
hauling  its  own  products,  can  still  be  equipped  with  links  and 
pins  and  fastened  with  chains,  and  can  be  carried  back  and 
forth  over  thousands  of  miles  of  roads.  Counsel  wiU  not  expect 
me  to  discuss  that. —  McPherson,  D.  J.,  pp.  490-491. 
TJ.  S.  V.  Southern  Ry.  Co.  [unreported]. 

District  Court,  District  of  South  Carolina,  February  24,  1909. 

It  (the  court)  wiU  instruct  you  that  if  the  car  referred  to, 

containing  sand,  was  being  moved  from  South  Carolina  into 

North  Carolina  for  the  company's  own  purposes,  if  it  was  car- 


46  SAFETY  APPLIANCE  ACTS. 


ried  in  a  train  which  was  engaged  in  interstate  commerce,  and 
this  car  was  defective,  it  faUs  within  the  denunciation  of  the 
statute  still. — Brawley,  D.  J. 
V.  S.  V.  CMcago  cfc    N.  W.   Ry.    Co.,    157   Fed.,  616;  Johnston  v. 
Chicago  Great  Western  Ry.  Co.,  164  S.  W.,  260. 
16.  The  expression  "any  car,"  as  used  in  the  Acts,  comprehends  all 
cars  running  on  the  rails : 
Johnson  V.  Southern  Pacific  Co.,  196  U.  S.,  1. 
Supreme  Court,  December  19,  1904. 

And  manifestly  the  word  "car"  was  used  [in  the  statute] 
in  its  generic  sense.  There  is  nothing  to  indicate  that  any 
particular  kind  of  car  was  meant.  Tested  by  context,  subject 
matter,  and  object,  "any  car"  meant  all  kinds  of  cars  running 
on  the  rails,  including  locomotives. — Fuller,  Chief  Justice, 
pp.  15-16. 

V.  S.  V.  St.  Louis  S.  W.  Ry.  Co.  of  Texas,  184  Fed.,  28;  Central 
Vermont  Ry.  Co.  v.  V.  S.,  205  Fed.,  40. 

— (a).  Locomotives; 

Johnson  V.  Southern  Pacific  Co.,  196  U.  S.,  1 ;  Schlemmer  v.  Buffalo, 
R.  d:  P.  Ry.  Co.,  205  U.  S.,  1 ;  U.  S.  v.  Chicago,  M.  c&  St.  P. 
Ry.  Co.,  149  Fed.,  486;  U.  S.  v.  Chicayo  cfc  N.  W.  Ry.  Co.,  157 
Fed.,  616;  Chicago,  M.  &  St.  P.  Ry.  Co.,  v.  TJ.  S.,  165  Fed., 
423;  TJ.  S.  V.  Southern  Pacific  Co.,  167  Fed.,  699;  V.  S.  v.  South- 
em  Ry.  Co.,  170  Fed.,  1014;  State  v.  Kelly  et  aZ.,  70  L.  R.  A.,  450; 
U.  S.  V.  BaUimore  cfc  0.  R.  Co.,  D.  C,  N.  t).  West  Virginia,  Jan. 
18,  1909,  Davton  D.  J.  [unreported];  TJ.  S.  v.  Southern  Pacific 
Co.,  D.  C,  D;^  Nevada,  Nov.  24,  1909,  Farrington,  D.  J.  [unre- 
ported]; TJ.  S.  Y.  Northern  Pacific  Ry.  Co.,  D.  C,  W.  D.,  Wash- 
mgton,  Dec.  6,  1913,  Cushman,  D.  J.  [imreported].  See  also 
Southern  Ry.  Co.  v.  Crockett,  234  U.  S.,  725. 

— Per  Contra: 

Johnson  v.  Southern  Pacific  Co.,  117  Fed.,  462;  Wabash  R.  Co.  v.  U.  S.,  172 
Fed.,  864. 

— (i).  The  locomotive  at  the  head  of  a  freight  train  is  a  "freight  car" 
within  the  purview  of  the  Acts. 

Chicago,  M.  S  P.  S.  Ry.  Co.  v.  V.  S.,  196  Fed.,  882. 
Circuit  Court  of  Appeals,  9th  Circuit,  May  6,  1912. 

We  think,  in  view  of  the  language  of  the  Act  and  its  purpose, 
it  was  intended  to  include  within  the  term  ^  'freight  cars  "  all  cars 
used  in  the  movement  of  freight,  whether  freight  was  actually 
stored  in  them  or  they  were  used  for  the  purpose  of  rnoving  the 
train,  and  that  there  is  included  therein  the  locomotive  at  the 
head  of  the  train  and  the  caboose  at  the  other  end.  The  evils  to 
be  remedied  and  the  dangers  to  be  averted  were  just  as  great 
and  demanded  legislation  as  much  in  the  case  of  a  locomotive  as 
in  the  case  of  any  car  in  the  train.  But  all  doubt  is  removed  by 
Act  March  2,  1903,  which  amended  the  prior  Act,  and  enacted 
that  its  provisions  and  requirements  relating  to  automatic 
couplers  and  heights  of  drawbars,  etc.,  "shall  be  held  to  applv  to 
all  trains,  locomotives,  tenders,  cars,  and  similar  vehicles  used  on 


SCOPE.  47 


any  railroad  engaged  in  interstate  commerce.'' — Gilbert,  C.  J., 
pjx  883-884.  [Affii-ming  the  judgment  of  the  District  Court  for 
the  District  of  Montana,  and  cited  with  apparent  approval  by  the 
Supreme  Court  in  Souihern  Ry.  Co.  v.  Oroclcett,  234  U.  S.,  725.] 

-(b).  Locomotive  Tenders: 

U.  S.  V.  Southern  Ry.  Co.,  170  Fed.,  1014;  V.  S.  v.  Baltimore  cfc 
0.  R.  Co.,  184  Fed.,  94;  WinUer  v.  Philadelphia  &  R.  Ry,  Co.\ 
53  Atl.,  90;  Philadelphia  <&  R.  Ry.  Co.  v.  Winller,  56  Atl.,  112; 
U.  S.  V.  Baltimore  <&  0.  R.  Co.,  D.  C,  N.  D.  West  Virginia, 
Jan.  18,  1909,  Dayton,  D.  J.  [unreported]. 

-Per  Contra: 

Larahee  v.  New  York,  N.  H.  &  H.  R.  Co.,  66  N.  E.,  1032. 

-(c).  Shovel  Cars: 

ScJilemmer  v.  Buffalo,  R.  c&  P.  Ry.  Co.,  205  U.  S.,  1;  U.  S.  v. 
Chicago  cfc  N.  W.  Ry.  Co.,  157  Fed.,  616;  Chicago.  M.  &  St.  P. 
Ry.  Co.  V.  U.  S.,  165  Fed.,  423.  But  see  Lalce  Shore  <&  M.  S, 
Ry.  Co.  V.  Benson,  97  N.  E.,  417,  Avith  respect  to  the  non-applica- 
tion of  the  Acts  to  a  locomotive  crane. 

-(d).  Caboose  Cars: 

Suttle  V.  Choctaw,  0.  <h  G.  R.  Co.,  144  Fed.,  668;  Chicago,  M.  db 

P.  S.  Ry.  Co.  V.  U.  S.,  196  Fed.,  882;  MoUle,  J.  c&  K.  C.  R. 

Co.  V.  Bromberg,  37  So.,  395;    TJ.  S.  v.  Toledo  Terminal  R.'Co., 

D.  C,  N.  D.  Ohio,  June  15,  1909,  Cochran,  D.  J.  [unreported]; 

U.  S.  V.  Southern  Pacific  Co.,  D.  C.,  D.  Nevada,  Nov.  24,  1909, 

Farrmgton,  D.  J.  [unreported]. 

-(e).  Passenger  Cars: 
NorfolJc  S  W.  Ry.  Co.  v.  V.  S.,  177  Fed.,  623. 

Circuit  Court  of  Appeals,  4th  Circuit,  March  4,  1910. 

The  Supreme  (  ourt,  in  Johnson  v.  Southern  Pacific  (7o., 
196  U.  S.,  1,  held  the  word  '^car"  used  in  sections  2,  6,  and  8 
of  the  original  Act  to  have  been  used  in  its  generic  sense  intended 
to  include  ''all  kinds  of  cars  running  on  the  rails,"  and  that  it 
did  include  a  locomotive  which  could  not  couple  automatically 
with  a  dming  car.  Section  6,  so  construed,  expressly  pre- 
scribed a  penalty  for  the  use  of  ''any  car  in  violation  of  any  of 
the  pro  visions "  of  the  Act,  of  course  including  section  4 — the* 
grab-iron  section — which  by  the  amended  and  declaratory  Act 
of  March,  1903,  was  to  apply  to  "all  cars  and  similar  vehicles 
used  on  any  railroad  engaged  in  interstate  commerce."  The 
Johnson  Case  has  been  cited  and  approved  since  in  Schlemmer  v. 
Buffalo,  R.  c&  P.  Ry.  Co.,  205  U.  S.,  1.  The  contention  that 
these  cases,  not  having  under  specific  consideration  this  particu- 
lar section  4,  do  not  apply  here,  and  leaves  the  question  of  its 
application  to  passenger  cars,  we  think  untenable. — Daytonj 
D.  J.,  p.  628. 
V.  S.  V.  Norfolk  &  W.  Ry.  Co.,  184  Fed.,  99. 

District  Court,  Western  District  of  Virginia,  November  28, 1910. 

The  contention   that  section    4  of  the  Safety  Appliance 

Act  was  never  intended  to  apply  to  passenger  cars  deserves 

some  consideration.     The  original  Act  of  1893  in  terms  applied 


48  SAFETY  APPLIANCE  ACTS. 


to  ''any  car.''  In  passing  the  amendment  of  1896,  Congress 
did  not  see  fit  to  make  any  exception  as  to  passenger  cars,  and 
the  amendment  of  1903  not  only  does  not  in  the  slightest  indi- 
cate any  intention  to  except  passenger  cars  from  the  operation  of 
section  4,  but  it  emphasizes  the  point  that  the  requirements  as 
to  couplers^  grab  irons,  etc.,  appiy  to  ''all  cars"  used  in  inter- 
state commerce.  *  *  *  And  whether  the  witness  above 
quoted  is  indisputably  right  or  not  (and  I  think  he  is)  in  stating 
tnat  handholds  in  the  ends  of  passenger  coaches  would  at  least 
at  one  stage  of  the  proceedings  be  of  assistance,  the  possibility 
that  he  may  be  right  seems  to  be  a  sufficient  reason  for  refusing 
to  construe  such  language  as  "any  car"  and  "all  cars"  as  not 
embracing  passenger  cars. —  McDowell,  D.  J.,  pp.  101,  102. 
See  also: 

Handholds. — The  law  makes  no  distinction  be- 
tween passenger  and  freight  cars,  and  handholds  must, 
therefore,  be  placed  on  the  ends  of  passenger  cars  and 
cabooses. — Aam.  Ruling  No.  67. 

—  (f).  Dining  Cars. 

Johnson  v.  Southern  Pacific  Co.,  196  U.  S.,  1;  U.  S.  v.  Great 
Northern  By.  Co.,  145  Fed..  438;  Snead  v.  Central  of  Georgia  Ry. 
Co.,  151  Fed.,  608;  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  U.  S.,  165, 
Ted.,  423;  U.  S.  y.  Southern  Pacific  Co.,  D.  C,  D.  Nevada. 
Nov.  24,  1909,  Farrington,  D.  J.  [unreported].  But  see  Johnson 
V.  Southern  Pacific  Co.,  117  Fed.,  462. 

16,  Cars  to  whicli  the  Acts  apply  are  subject  to  their  terms,  even  while 
such  vehicles  are  being  moved  within  the  boundaries  of  a  single 
State. 
U.  S.  V.  International  ch  Great  NoHhem  R.  Co.,  174  Fed.,  638. 
Circuit  Court  of  Appeals,  5th  Circuit,  December  21,  1909. 
The  Act,  as  amended,  appfies  to  all  cars  and  trains  operated 
by  a  railroad  carrier  of  interstate  commerce  over  an  interstate 
railway,  irrespective  of  whether  the  defective  car  is  bein^  hauled 
from  one  point  to  another  in  the  same  State  or  not,  it  being  part 
of  a  train  engaged  in  interstate  traffic. — Shelby,  C.  J.,  p.  640. 
Belt  Ry.  Co.  of  Chicago  v.  U.  S.,  168  Fed.,  542. 

Grcuit  Court  of  Appeals,  7th  Circuit,  February  3,  1909. 

"  If  between  the  point  of  origin  of  this  commodity  and  the 
point  of  destination  of  this  commodity,  the  car  in  which  it  is  being 
vehicled  from  origin  to  destination  passes  over  a  line  of  track 
wholly  mthin  a  city,  within  a  county,  or  within  a  State,  the  rail- 
way company  operating  that  line  of  track  while  moving  this  com- 
modity, so  originating  and  destined  from  one  point  to  another 
point,  intrastate,  is  engaged  in  interstate  commerce."  [Charge 
of  lower  court  sustained.] — Baker,  C.  J.,  p.  543. 
U.  S.  V.  Chicago  Great  Western  Ry.  Co.,  162  Fed.,  775. 

District  Court,  Northern  District  of  Iowa,  May  6,  1908. 

The  fact  that  that  car  was  hauled  wholly  within  the  State  of 
Iowa  is  not  material  if  in  the  same  train  that  it  was  hauled  there 
were  other  cars  loaded  with  traffic  from  a  point  without  the  State, 


SCOPE.  49 


or  from  a  point  within  the  State  consigned  to  a  point  without  the 
Stsite.— Reed,  D.  J.,  p.  782. 
U.  S.  V.  Southern  By.  Co.,  164  Fed.,  347. 

District  Court,  Northern  District  of  Alabama,  Sept.  25,  1908. 
Whether  this  interstate  highway  is  used  in  the  hauling  of 
vehicles  in  the  condition  alleged  in  the  petition,  from  a  point  in 
one  State  to  a  point  in  another  State  or  between  points  entirely 
within  the  same  State  is  immaterial  in  the  application  of  the 
Safety  Appliance  Statutes. — Hundley,  D.  J.,  p.  358. 
Pacific  Coast  Ry.  Co. v.  U.S.,  173Fed.,448;  U.S.v.Westernd)  A.R. 
Co.,  184  Fed.,  336;  Southern  Ry.  Co.  v.  Snyder,  187  Fed.,  492; 
Devine  v.  Chicago  &  C.  R.  R.  Co.,  102  N.  E.,  803;  U.  S.  v.  Belt 
Ry.  Co.  of  Chicaao,  D.  C,  X.  D.  IlHnois,  Jan.  23,  1908,  Landis, 
D.  J.  [unreported]. 

Per  Contra: 

International  &  Great  Northern  Ry.  Co..  v.  Elder,  99  S.  W.,  856.  See  also  Rio  Grande 
Southern  R.  Co.  v.  Cam^pbell,  96  Pac.  986;  Luken  v.  Lake  Shore  d:  M.  S.  Ry. 
Co.,  94  N.  E.,  175. 

17.  The  Acts  apply  no  less  to  inter-yard  or  switching  movements 
than  to  main-line  operations. 

Johnson  V.  Southern  Pacific  Co.,  196  U.  S.,  1. 
Supreme  Court,  December  19,  1904. 

Confessedly  this  dining  car  was  under  the  control  of  Congress 
while  in  the  act  of  making  its  interstate  journey,  and  in  our  judg- 
ment it  was  equally  so  when  waiting  for  the  train  to  be  made  up 
for  the  next  trip.  It  was  being  regularly  used  in  the  movement 
of  interstate  traffic  and  so  mthin  the  law. — Fuller,  Chief  Jus- 
tice, p.  22. 
U.  S.  v.  Chesapeale  d)  0.  Ry.  Co.,  213  Fed.,  748. 

Circuit  Court  of  Appeals,  4th  Circuit,  February  27,  1914. 

To  hold  that  this  proviso  applies  only  to  trauus  operated 
on  lines  between  stations  would  m  a  large  measure  deny  pro- 
tection to  those  for  whose  benefit  the  law  was  passed  and  give 
a  narrow  and  artificial  construction  to  the  statute. 

We  do  not  deem  it  necessary  to  review  the  many  authorities 
cited  by  counsel  for  the  Government,  as  well  as  those  cited  by 
defendant,  further  than  to  say  that  we  have  carefully  considered 
the  case  of  Erie  R.  Co.  v.  Z7.  S.  [197  Fed.,  287],  decided 
by  the  Circuit  Court  of  Appeals  for  the  Third  Circuit.  That 
case  supports  the  defendant  s  contention,  notwithstanding  the 
facts  upon  which  it  is  based  differ  somewhat  from  the  case  at 
bar.  While  we  have  the  greatest  respect  for  that  court  in  its 
decision,  yet  a  careful  consideration  of  the  statute  impels  us  to 
dissent  from  the  views  therein  expressed. 

To  hold  that  the  words  "while  such  car  was  being  used  by 
such  carrier  upon  its  line  of  railroad"  are  intended  to  limit  the 
statute  in  its  application  to  the  main  line,  would  in  a  large  degree 
nullify  the  Act.  When  we  consider  the  statute  in  regard  to 
safety  appliances,  we  are  forced  to  the  conclusion  that  it  must 
have  been  the  intention  of  Congress  that  the  same  should  apply 
to  sidetracks  and  yard  tracks  as  well  as  the  main  lines. — Pritch- 
ard,  C.  J.,  pp.  751-752. 
50611—15 4 


50  SAFETY  APPLIANCE  ACTS. 


WahasJi  R.  Co.  v.  V.  S.;  Elgin,  J.  d;  E.  By.  Co.  v.  U.  S.,  168  Fed.,  1. 
Circuit  Court  of  Appeals,  7th  Circuit,  February  3,  1909. 

The  risks  incurred  in  coupling  and  uncoupling  are  more 
imminent  on  switching  tracks  where  trains  are  made  up  and  dis- 
tributed, and  where  empty  cars  are  set  out  at  freight  houses  or 
factory  platforms  to  be  loaded,  than  on  the  main  lines.  It  is  not 
reasonable  to  suppose  that  Congress  intended  to  cover  only  the 
smaller  part  of  the  dangers;  and  since  the  language  employed  is 
entirely  consistent  with  the  larger  meaning,  section  2  of  the  Act 
of  1893  should  be  held  to  forbid  an  interstate  carrier  from  hauling 
or  using  on  its  line  any  car  that  is  customarily  or  generally  em- 
ployed in  moving  interstate  traffic,  and  that  is  not  e(][uipped 
with  automatic  couplers,  even  though  at  the  particular  time  the 
car  be  empty  or  be  moving  intrastate  traffic. — Baker,  C.  J.,  p.  3. 
Chicago,  M.  <&  St.  P.  Ry.  Co.  v.  U.  S.,  165  Fed.,  423. 

Circuit  Court  of  Appeals,  8th  Circuit,  November  27,  1908. 

There  had  been  no  delivery  of  the  car  in  question  at  its  ulti- 
mate destination,  and  the  switching  of  it  from  the  time  it  was 
taken  by  defendant's  employees  on  the  exchange  track  to  the 
time  of  the  discovery  of  the  defect  was  in  the  course  of  such 
delivery  and  constituted  a  use  in  interstate  commerce. — Hoolc, 
G.  J.,  p.  426. 
Union  Stock  Yards  Co.  of  OmaM  y.U.  S.,  169  Fed.,  404. 
Circuit  Court  of  Appeals,  8th  Circuit,  April  2,  1909. 

The  carriage  of  these  shipments  from  the  transfer  track  to 
the  sheds  or  pens  and  vice  versa  is  no  less  a  part  of  their  transit 
between  their  points  of  origin  and  destination  than  is  their  car- 
riage over  any  other  portion  of  the  route. —  Van  Devanter,  G.  J.y 
p.  406. 
CUcago,  B.  cfc  Q.  Ry.  Co.  v.  V.  S.,  211  Fed.,  12. 

Circuit  Court  of  Appeals,  8th  Circuit,  November  28,  1913. 

It  is  first  urged  by  the  company  that  this  movement  was  a 
switching  operation  and  not  ''on  the  line"  of  the  company 
within  the  meaning  of  the  statute;  in  other  words,  that  section 
2  of  the  Act  does  not  relate  to  the  movement  of  cars  in  switching. 
The  coupling  and  uncoupling  of  care,  however,  is  confined 
almost  wholly  to  such  operations,  and  to  hold  that  it  is  not  a 
violation  of  the  law  to  have  the  coupling  and  uncoupling  appa- 
ratus in  a  defective  condition  at  such  times,  would  be  a  clear 
nullification  not  only  of  the  language  of  the  statute  but  of  its 
manifest  purpose.  This  assignment  of  error  is,  therefore,  wholly 
devoid  of  merit. — Amidon,  D.  J.,  p.  14. 
U.  S.  V.  Atlantic  Coast  Line  R.  Co.,  214  Fed.,  498. 

District  Court,  Southern  District  of  Florida,  May  28,  1913. 

The  Supreme  Court,  in  Southern  Ry.  Co.  v.  Z7.  S.  [222  U.  S. 
20],  on  page  26,  have  this  to  say:  ''For  these  reasons  it  must  be 
held  that  the  original  Act  as  enlarged  by  the  amendatory  one  is 
intended  to  embrace  all  locomotives,  cars,  and  similar  vehicles 
used  on  any  railroad  which  is  a  highway  of  interstate  commerce," 
and  then  holds  said  Act  so  constructed  within  the  powers  of  Con- 
gress.    The  decision  in  the  case  of  Erie  R.  Co.  v.  TJ.  S.  [197  Fed., 


SCOPE.  51 


287],  and  line  of  reasoning  can  have  no  bearing  on  the  decision 
of  this  question.  The  charge  in  the  second  count  is  for  a  failure 
to  have  the  car  properly  equipped  with  a  coupling  as  required  by 
the  Act.  It  is  no  defense  to  this  charge  to  say,  ''It  is  true  the  car 
was  not  properly  equipped,  but  we  are  switching  it  and  other 
cars  on  our  line  or  m  our  yards."  There  is  no  denial  that  the 
defendant  was  a  railroad  engaged  in  interstate  commerce  and  the 
cars  mentioned  engaged  in  interstate  commerce,  except  it  be  by 
reason  of  the  switching  operations,  and  the  Supreme  Court  in  the 
case  above  referred  to  has  construed  the  requirements  of  these 
Acts  in  no  uncertain  terms. — Call,  D.  J.,  p.  500. 
U.  S.  V.  Pere  Marquette  R.  Co.,  211  Fed.,  220. 

District  Court,  WesternDistiict  of  Alichigan,  September  5,  1913. 

Wyoming  Yard  and  Freight  House  Yard  are  both  within  the 
general  yard  limits  of  the  city  of  Grand  Rapids,  but  they  are  about 
2  miles  apart  and  each  has  its  own  system  of  switching  tracks. 
Trains  passing  from  one  yard  to  the  other  must  run  for  the  entire 
distance  upon  defendant's  main  line  over  which  its  regular  pas- 
senger and  freight  trains  as  well  as  switching  and  transfer  trains 
are  operated.  This  part  of  the  main  line  has  some  minor  grades 
and  curves  and  crosses  at  grade  five  city  streets  and  a  street  car 
line.     *     *     * 

On  March  5,  1912,  16  or  17  cars  which  had  been  brought  into 
the  Wyoming  Yard  in  other  trains  were  switched  and  formed  into 
a  train  and  then  pushed  by  a  switch  engine  from  that  yard  over 
the  main  line  of  tracks  to  Freight  House  Yard  to  be  unloaded  or 
to  have  their  cargoes  rearranged.  At  least  one  of  the  cars  con- 
tained an  interstate  shipment.     *     *    * 

The  sole  question  to  be  determined  is  whether  or  not  the 
provisions  of  the  Safety  Appliance  Acts  apply  to  car  and  train 
movements  like  the  one  above  described.  It  must  be  conceded 
that  16  cars  and  a  locomotive  coupled  and  moved  together  for  2 
miles  upon  the  main  tracks  of  a  railroad  line  through  a  large  city 
and  across  several  streets  constitute  a  train  within  the  purview  of 
the  statute.  Plaintiff's  witnesses  have  called  the  movement  of 
this  train  a  ''transfer"  movement,  while  defendant's  witnesses 
insist  that  it  was  purely  a  "switching"  movement.  The  name 
given  to  the  movement  is  of  no  importance  and  its  character 
may  not  be  controlling.  That  the  use  of  a  car  whose  coupling 
apparatus  is  inoperative  upon  the  tracks  of  a  railroad  company 
engaged  in  interstate  commerce  and  in  connection  with  such 
commerce,  either  in  a  switch  yard  or  in  actual  road  service  upon 
the  main  Une,  is  a  violation  of  the  Safety  Appliance  Acts  is  no 
longer  an  open  question  [Delk  v.  St.  Louis  c&  S.  F.  R.  Co.,  220  U. 
S.,  bm.]— Sessions,  D.  J.,  pp.  221-222. 
Crawford  v.  New  YorTc  Central  &  H.  R.  R.  Co.,  10  Am.  Neg.,  166. 
Supreme  Court  of  Westchester  Co.,  N.  Y.,  April  Term,  1901. 

The  other  claim  of  the  defense  is  that  as  to  these  particular 
cars  they  were  not  in  use  for  interstate  commerce,  because  they 
were  not  on  the  road  in  matter  of  transit  at  the  time,  but  were  in 


^:.:j 


52  SAFETY  APPLIANCE  ACTS. 


the  yard  itself.  As  to  that,  I  charge  you  if  the  cars  were  cars 
engaged  and  being  used  in  interstate  commerce,  it  matters  not 
whether  they  were  being  made  up  in  the  yard  or  were  moving  at 
the  time  out  on  the  road,  because  the  statute  is  intended  to  pro- 
tect brakemen  against  the  danger  of  such  work,  so  far  as  it  can 
protect  them  against  such  dangers,  and  it  matters  not  whether 
mtei-state-commerce  cars  were  being  niade  up  to  start  out  on  the 
road  or  whether  they  were  actually  moving  along  between  the 
States  at  the  time,  so  far  as  the  purpose  and  intent  of  the  statute 
is  concerned.  In  fact,  in  the  making  up  there  is  more  necessity 
for  the  brakemen  to  be  at  their  work,  coupling  the  cars,  bringing 
them  together,  than  in  the  operation  of  the  cars  after  they  once 
start  out  from  New  York  for  Boston,  New  Haven,  Chicago,  or 
elsewhere. — Dickey,  J.,  p.  169. 

MoUle,  J.  &  K.  C.  R.  Co.  v.  Bromherg,  37  So.,  395. 
Supreme  Court  of  Alabama,  May  17,  1904. 

It  would  be  a  narrow  and  limited  construction  of  this  statute 
to  say  that  it  was  only  applicable  in  cases  where  the  cars  at  the 
very  moment  of  the  injury  are  bemg  actually  used  in  moving 
interstate  traflB.c,  and  not  to  cars  where  the  injury  occui-s  in  the 
making  up  of  a  train  of  cars  for  the  purpose  of  moving  interstate 
traffic.  The  language  employed  in  the  statute,  as  well  as  the 
beneficent  purpose  for  which  it  was  enacted — the  preservation 
of  human  life — forbids  an  interpretation  so  narrow. — Dowdell, 
J.,  p.  398. 

U,  S.  V.  Southern  Pacific  Co.,  [unreported]. 

District  Court,  District  of  Nevada,  November  24,  1909. 

The  Safety  Appliance  Act  prohibits  the  use  of  any  car 
defective  as  to  safety  appfiances  either  upon  the  main  line  of 
the  railroad  or  merely  in  switching  movements  within  the  yards 
of  the  company. — Farrington,  D.  J. 

U.  S.  V.  Pittshurgh,  C.  C.  &  St.  L.  By.  Co.,  143  Fed..  360;  Johnson  v- 
Great  Northern  Ry.  Co.,  178  Fed.,  643;  Erie  R.  Go.  v.  Russelh 
183  Fed.,  722;  U.  S.  v.  Western  &  A.  R.  Co.,  184  Fed.,  336; 
Southern  Ry.  Go.  v.  Snyder,  187  Fed.,  492;  Gray  v.  Louisville 
&  N.  R.  Co.,  197  Fed.,  874;  Southern  Ry.  Co.  v.  Snyder,  205 
Fed.,  868;  Wheeling  Terminal  Ry.  Go.  v.  Russell,  209  Fed.,  795; 
Devine  v.  Chicago  cfc  G.  R.  R.  Co.,  102  N.  E.,  m^^Poyylar  v. 
Minneapolis,  St.  P.  dc  S.  S.  M.  Ry.  Co.,  141  N.  W.,  798;  St. 
Louis  cfc  S.  F.  R.  Go.  v.  Gonarty,  155  S.  W.,  93.  See  also  Grand 
Trunk  Western  Ry.  Co.  v.  Lindsay,  233  U.  S.,  42:  NashviUe, 
G.  &  St.  L.  Ry.  Go.  v.  Henry,  164  S.  W.,  310.  But  see  Rosney 
V.  Erie  R.  Co.,  135  Fed.,  311;  Siegel  v.  New  York  Central  & 
H.  R.  R.  Co.,  178  Fed.,  873. 

[It  is  to  be  noted  that  in  the  foregoing  decisions 
the  appfication  of  the  Acts  to  switching  operations  has 
been  essentially  restricted  hy  the  facts  in  issue  to  the 
movement  of  defective  cars,  the  requir.  ments  with  re- 
spect to  air-brake  equipment  being  not  directly  involved. 
In  the  following  cases,  however,  the  air-hrake  provisions 
of  the  statute  are  affirmatively  construed  as  extending  to 
the  operation  of  trains  in  inter-yard  or  switching  move- 
ments.] 


SCOPE.  53 


Belt  By.  Co.  of  Chicago  v.  U.  S.,  168  Fed.,  542. 

Circilit  Court  of  Appeals,  7th  Circuit,  February  3,  3  909. 

The  Belt  Line  physically  connected  its  track  with  those  of 
the  Eastern  Illinois  and  of  the  Northwestern,  so  that  a  continuous 
highway  across  State  lines  was  formed,  on  which  interstate  traffic, 
loaded  on  interstate  cars,  was  moved  from  origin  to  destination 
without  change  of  cars.  *  *  *  The  Belt  Line,  issuing  no  bills 
of  lading  because  of  having  no  dealings  with  the  shipper  or  with 
anyone  on  his  behalf,  performing  its  gateway  service  on  account  of 
and  as  agent  of  the  trunk  lines,  made  its  track  the  track  of  its  prin- 
cipals. Consequently  the  character  of  the  transportation  should 
be  determined  by  considering  the  transporation  as  the  act  of  such 
principals.  Trunk-line  yards  are  in  some  instances  so  related  to 
each  other  that  through  cars  can  be  transferred  without  the  inter- 
vention of  a  go-between.  We  are  of  opinion  that  the  transporta- 
tion in  question  was  the  same  in  legal  effect  as  if  the  Eastern 
Illinois  by  means  of  its  own  locomotWe  and  track  had  put  the 
through  car  on  the  Northwestem's  track.  In  this  view  there 
was  evidence  from  which  the  inference  of  fact  might  warrantably 
be  drawn  by  the  jury  that  there  was  a  common  arrangement  for  a 
continuous  carriage  over  the  Eastern  Illinois  and  the  North- 
western; and  so,  with  respect  to  the  movement  in  question,  plain- 
tiff in  error  was  engagea  in  interstate  transportation. — BaJcer, 
C.  J.,  p.  545. 

Atchison,  T.  d;  S.  F,  By.  Co.  v.  Z7.  S.,  198  Fed.,  637. 

Circuit  Court  of  Appeals,  7th  Circuit,  April  23,  1912. 

Less  than  the  required  number  of  cars  in  the  train  had  air 
brakes  under  the  control  of  the  engineer.  Corwith  is  an  outer 
Chicago  yard,  where  incoming  trains  used  in  interstate  traffic 
are  stopped  and  the  cars  are  distributed  upon  various  tracks. 
Cars  that  are  destined  to  plaintiff  in  error's  inner  yard  at 
Eighteenth  Street  are  assembled  at  Corwith  mto  a  train  and 
moved  about  8  miles  to  Eighteenth  Street  over  switch  tracks, 
leads,  and  main  tracks  of  plaintiff  in  error,  across  a  drawbridge 
and  three  railroads,  at  the  rate  of  6  to  8  miles  per  hour.  Beyond 
Corwith  the  trains  are  under  the  jurisdiction  of  the  train  dis- 
patcher; between  Corwith  and  the  Eighteenth  Street  yard,  of  the 
yardmaster.  At  Corwith  the  regular  ''road"  crews  give  up  the 
trains,  and  from  there  to  Eighteenth  Street  trains  are  handled  by 
''switching"  crews.  From  Corwith  to  Eighteenth  Street  the 
railroad  is  w^holly  within  Cook  County,  111.    *     *     * 

From  the  use  of  the  words  "run,"  "speed,"  and  "brake- 
men"  in  the  original  Act  plaintiff  in  error  argues  that  this  pro- 
vision for  the  engineer's  control  of  the  train  by  means  oi  air 
brakes  applies  only  to  "road"  trains.  But,  in  our  opinion.  Con- 
gress, in  requiring  a  train  to  be  '  'so  equipped  with  power  or  train 
brakes  that  the  engineer  on  the  locomotive  drawmg  such  train 
can  control  its  speed  without  requiring  brakemen  to  use  the  com- 
mon hand  brake  for  that  purpose,"  employed  the  word  "brake- 
men  "  generically  as  including  any  and  all  men,  whether  speci- 
fically known  as  "conductors"  or  "brakemen"  or  "yard  fore- 
man" or  "switchmen,"  whose  duties  in  connection  with  the 
train  would  oblige  them  to  use  the  common  hand  brakes  in  the 


54  SAFETY  APPLIANCE  ACTS. 


absence  of  air  brakes,  and  intended  that  the  engineer  should  be 
able  to  "control  the  speed''  and  bring  quickly  to  a  standstill  a 
train  moving  slowly  through  a  congested  region  of  drawbridges 
and  railroad  crossings,  as  well  as  a  train  moving  rapidly  on  a  single 
clear  track  in  the  country.  Interstate  cars  destined  to  Eight- 
eenth Street  did  not  complete  their  interstate  journey  until 
they  reached  that  point;  and  the  dangers  to  the  men  engaged  in 
moving  those  cars  and  to  the  interstate  traffic  itself  were  at  least 
as  imminent  as  the  dangers  on  the  "road." — Baker,  G.  /.,  pp. 
638-639. 
V.  S.  V.  Grand  TrunTc  By.  Co.  of  Canada,  203  Fed.,  775. 

District  Court,  Western  District  of  New  York,  March  8,  1913. 

The  undisputed  facts  show  that  the  cars  constituting  the 
train  were  hauled  from  Black  Rock  in  Buffalo  to  Bridgeburg 
in  Canada,  a  distance  of  approximately  2  miles,  over  a  draw- 
bridge crossing  the  barge  canal  and  over  the  International 
Bridge  across  Niagara  River.  The  cai*s  were  not  engaged  in  the 
performance  of  a  switching  operation,  nor  were  they  moving  in 
the  yard  of  the  defendant  company,  but  the  evidence  as  to  one 
cause  of  action  set  forth  in  the  complaint  shows  that  9  cars  were 
coupled  and  loaded  and  hauled  by  a  locomotive;  and  as  to  the 
other  cause  of  action,  that  there  were  25  coupled  loaded  cars 
similarly  hauled  on  the  main  track  to  Bridgeburg,  from  whence 
they  were  destined  to  other  points.  I  think  the  journey  was  fairly 
initiated  at  Buffalo,  and  that  the  cars  coupled  to  the  locomotive 
constituted  a  train,  and  that  the  operators  of  the  train  consti- 
tuted a  train  crew,  even  though  orders  from  the  train  dispatcher 
of  the  defendant  were  not  ^iven  to  them  at  Buffalo,  but  were 
given  to  another  crew  relieving  them  at  Bridgeburg.     *     *     * 

Upon  the  question  of  whether  those  in  charge  of  the  train 
between  Buffalo  and  Bridgeburg  constituted  a  regular  train 
crew,  the  decision  of  the  Circuit  Court  of  Appeals  for  the  Sev- 
enth Circuit  in  Atchison,  T.  cfc  S.  F.  By.  Co.  v.  Z7.  S.  198  Fed., 
637,  may  profitably  be  considered.  There  the  train,  carrying 
cars,  caboose,  and  markers,  was  coupled  together  by  switching 
crews  from  localities  on  the  outskirts  of  Chicago,  and  hauled 
from  different  sidetracks  onto  the  main  tracks  across  a  draw- 
bridge at  a  rate  of  from  6  to  8  miles  an  hour  and  proceeded  a  dis- 
tance of  6  miles,  the  crews  at  the  time  being  under  the  super- 
vision of  the  yardmaster  and  not  of  the  train  dispatcher.  The 
only  material  difference  between  that  case  and  the  one  at  bar  is 
as  to  the  distances  covered  by  the  trains.  While  it  is  true  that 
the  trains  in  the  latter  case  traveled  a  distance  of  only  about  2 
miles  over  the  land  and  water,  there  seems  to  be  no  ^ood  reason 
why  the  air  hose  should  not  have  been  coupled  up  directly  after 
the  switching  operation  was  completed  and  the  cars  coupled  and 
moved. 

There  is  no  appreciable  hardship  to  the  defendant  in  requir- 
ing compliance  with  the  provisions  of  the  Act,  which  obviously 
was  passed  to  minimize  dangers  and  risks  to  w^hich  brakemen 
and  switchmen  are  subjected.     It  would  probably  be  more  con- 


SCOPE.  55 


venient  for  the  defendant  to  couple  and  uncouple  the  air  hose  at 
Bridgeburg,  across  the  river,  where  its  train  dispatcher  is  located 
and  where  another  crew  assume  control  of  the  train,  but  the 
train  crew — for  such  I  think  they  were — accompanying  the  train 
to  Bridgeburg  were  entitled  to  the  protection  which  the  statute 
obviously  designed  they  should  receive  as  soon  as  the  locomotive 
and  cars,  engaged  in  interstate  commerce,  were  coupled  together 
and  started  on  the  main  track  toward  their  destination. — 
Hazel,  D.  J.,  pp.  776-777. 
U.  S.  V.  Atlantic  Coast  Line  R.  Co.,  214  Fed.,  498. 

District  Court,  Southern  District  of  Florida,  May  28,  1913. 

Under  these  Acts  it  is  unlawful  ''to  use  any  train  in  such 
traffic"  without  the  safety  appliances  named  therein.  Do  these 
words  or  the  context  mean  only  while  the  train  is  moving  from 
point  to  point  in  the  journey,  or  do  they  mean  any  running  of 
a  train  of  cars  so  engaged  ? 

It  would  seem  that  the  movement  of  such  a  train  for  the 
purpose  of  placing  cars  in  position  for  delivery  or  for  the  pur- 
pose of  making  up  a  train  would  still  be  a  violation  of  the  Act 
unless  the  provisions  were  complied  with.  The  absence  of 
power  brakes  from  a  sufficient  number  of  cars  to  handle  the 
train  from  the  engine  would  endanger  the  lives  of  the  brakemen 
on  such  a  train  as  much  as  would  their  absence  in  the  train  after 
it  had  been  made  up.  And  we  must  not  lose  sight  of  the  fact 
that  Congress  intended  to  protect  this  very  class  in  providing 
for  the  use  of  power  brakes  instead  of  the  hand  brake  in  aU 
interstate  traffic.  I  am  constrained  to  think  that  a  train  of 
cars  used  in  interstate  traffic  falls  within  the  meaning  of  the  Act 
as  amended,  whether  used  in  regular  transit  or  switching  opera- 
tions, and  that  therefore  the  demurrer  to  the  second  plea  to  the 
third  count  is  well  taken. — Call,  D.  J.,  pp.  499-500. 
U.  S,  V.  Pere  Marquette  R.  Co.,  211  Fed.,  220. 

District  Court,  Western  District  of  Mchigan,  September  5, 1913. 

Should  the  statutory  requirement  concerning  the  use,  con- 
nection, and  operation  of  train  brakes  be  given  a  different  con- 
struction or  interpretation  from  that  which  has  been  applied 
by  the  courts  to  the  provisions  relating  to  car-coupUng  appara- 
tus ?  Clearly  not.  The  two  sections  of  the  statute  are  identical 
in  the  form  of  language  employed,  in  legislative  intent,  in  reme- 
dial purpose,  and  in  the  mandatory  obedience  thereto  which 
is  required,  the  only  difference  being  that  in  the  one  the  unit  is 
a  train  or  combination  of  cars  and  in  the  other  a  single  car.  If 
section  1  of  the  original  Safety  AppHance  Act  stood  alone,  there 
would  be  at  least  room  for  argument  that  its  provisions  were 
intended  by  Congress  to  apply  solely  to  trains  made  up  for  road 
service.  But  this  section  does  not  stand  alone.  It  must  be 
construed  in  connection  with  the  other  sections  of  the  same 
statute,  and  particularly  in  connection  with  and  with  reference 
to  the  modifying  and  explanatory  Act  of  March  2,  1903.  In 
and  by  the  latter  Act  Congress  has  removed  whatever  doubt, 
uncertainty,  or  ambiguity  existed  in  the  former  one  and  has 


56  SAFETY  APPLIAITCE  ACTS. 


said  plainly  and  unequivocally  that  the  provisions  and  require- 
ments of  the  earlier  Act  ''shall  be  held  to  apply  to  all  trains, 
locomotives,  tenders,  cars,  and  similar  vehicles  used  on  any 
railroad  engaged  in  interstate  commerce."  The  legislative 
intent  so  plainly  expressed  must  be  respected.  The  beneficial 
and  remedial  purposes  of  these  statutes  must  not  be  defeated 
by  strained  construction  and  must  not  be  made  subordinate  to 
either  convenience  or  economy  of  railroad  operation.  On  March 
5,  1912,  the  Pere  Marquette  Railroad  was  engaged  in  interstate 
commerce,  the  17  cars  and  switch  engine  here  in  controversy 
constituted  a  train,  at  least  1  car  of  that  train  contained  an  in- 
terstate shipment,  the  train  was  run  and  operated  upon  defend- 
ant's main  line  of  tracks,  the  coupHng  apparatus  upon  each  of 
2  cars  was  so  out  of  repair  as  to  be  moperative,  and  the  air  brakes 
were  not  coupled  up  and  connected  so  that  they  could  be  oper- 
ated by  the  engineer  from  the  locomotive.  There  is,  therefore, 
no  escape  from  the  conclusion  that  the  law  was  violated  in  the 
manner  set  forth  in  each  of  the  counts  of  plaintiff's  declaration. 

Counsel  for  defendant  rely  upon  the  case  of  Erie  R.  Co.  v. 
27.  S.,  197  Fed.,  287,  decided  by  the  Circuit  Court  of  Appeals 
of  the  Third  Circuit.  That  case  differs  from  the  present 
one  in  some  material  respects,  but  in  the  main  it  supports  de- 
fendant's contention.  I  nave  the  profoundest  respect  for  that 
court  and  its  decisions,  and  it  is  with  much  diffidence  and  hesi- 
tation that  I  feel  compelled  to  reach  a  different  conclusion.  In 
the  Erie  Case,  however,  the  court  seems  to  have  entirely  over- 
looked, ignored,  and  disregarded  the  controlling  effect  of  the 
modifying  and  explanatory  Act  of  1903.  After  careful  and 
patient  study  I  am  also  convinced  that  the  decision  in  the  Erie 
Case  is  in  conflict  with  both  the  spirit  and  the  letter  of  the  utter- 
ances of  the  Supreme  Court. — Sessions,  D.  J.,  p.  223. 
La  Mere  v.  Ry.  Trans.  Co.  of  Minneapolis,  145  N.  W.,  1068. 
Supreme  Court  of  Minnesota,  March  13,  1914. 

The  defendant  is  a  transfer  company.  It  is  conceded  that 
the  operation  in  which  it  and  the  plaintiff  were  engaged  at  the 
time  of  his  injury  was  an  interstate  operation.  It  was  taking 
some  15  cars,  all  or  all  except  one  loaded,  sometimes  called  a 
^'drag,"  from  its  yards  to  the  Chicago,  Milwaukee  &  St.  Paul 
yards,  referred  to  sometimes  as  the  Milwaukee  Transfer.  An 
miportant  question  is  whether  these  cars  with  the  locomotive 
hauling  them  constituted  a  train  within  the  meaning  of  the 
Safety  Appliance  Act.  The  cars  had  been  loaded  at  the  mills 
and  switched  onto  track  numbered  7,  which  was  set  apart  for 
the  use  of  the  Milwaukee  road.  They  were  equipped  with  air 
brakes,  and  the  air  hose  connections  were  coupled  while  they 
stood  on  track  7.  There  was  no  air  in  the  air  line;  that  is, 
there  was  no  connection  with  the  engine.  The  cars  were  in  use 
in  interstate  commerce.  They  were  about  to  start  on  an  inter- 
state journey  and  their  fii'st  movement  was  to  the  Milwaukee 
yards.  In  making  this  movement  the  train  went  on  an  upgrade 
onto  the  northbound  main  line  of  the  Minneapolis  &  St.  Louis 


SCOPE.  57 


Railroad  Company,  passed  by  a  cross-over  to  the  southbound 
main  line,  followed  it  a  short  distance,  crossed  in  its  course  a 
number  of  switches,  and  passed  onto  the  Milwaukee  Transfer. 
The  main  lines  of  the  Minneapolis  &  St.  Louis  were  traversed  for 
something  like  four  blocks.  The  length  of  this  particular  move- 
ment was  some  six  or  seven  blocks,  something  like  a  half  mile. 
The  danger  wa^  less  than  if  the  haul  had  been  longer,  just  as  the 
danger  of  one  haul  wa^  les^  than  of  several.  There  was  more 
danger  because  of  traversing  and  crossing  the  two  main  lines  of 
the  Minneapolis  &  St.  Louis.  There  was  less  danger  than  if 
there  had  been  a  number  of  main  lines  to  cross  and  less  danger 
than  if  a  main  line  had  been  traversed  a  greater  distance.  The 
defendant  hauled  the  transfers  for  four  roads.  It  connected  the 
air  on  all  trains  except  those  of  the  Milwaukee.  The  Milwaukee 
was  the  shorter  haul.  The  danger  from  not  using  air  in  the 
Milwaukee  haul  may  have  been  different  in  degree  from  the 
danger  in  other  hauls,  and  sometimes  it  may  have  been  different 
in  kmd,  and  it  may  have  differed  at  times  in  degree  and  in  kind 
from  a  main  line  haul,  at  times  being  greater  and  at  times  less. 
In  general  the  dangers  were  similar.  They  came  from  the  fact 
that  the  engineer,  without  the  air  connected,  was  not  in  control 
of  his  train,  and  what  the  particular  result  might  be  on  a  long 
haul  or  a  short  haul,  or  on  a  main  track  line,  or  on  a  haul  through 
the  transfer  yards,  either  to  the  trainmen  or  to  the  public,  no 
one  could  foretell. 

We  are  of  the  opinion  that  it  should  be  held  that  the  so- 
called  "drag''  was  a  train  within  the  meaning  of  the  Safety 
Appliance  Act.  The  switching  had  been  finished  when  the  cars 
were  on  track  7  and  coupled.  They  were  then  starting  on  their 
way.  It  was  not  in  a  proper  sense  a  switching  operation  at  all. 
It  is  not  important  that  no  caboose  was  attached.  It  is  not 
important  that  when  the  train  got  to  the  Milwaukee  yards  the 
cars  might  be  rearranged  and  go  to  different  destinations  as 
parts  of  different  trains.  It  is  not  important  that  the  engine 
w^as  in  a  backward  instead  of  a  forward  movement.  The  cars 
were  on  an  interstate  journey  when  they  left  track  7  and  they 
made  up  a  train.  The  trainmen  were  subject  to  the  dangers 
against  which  the  Safety  Appliance  Act  sought  to  guard  them 
by  requiring  the  au*  to  be  connected.  The  cars  and  engine 
come  within  the  ordinarv^  definition  of  a  train.  [Dacey  v.  Old 
Colony  R.  Co.,  153  Mass. ,"^112,  26  N.  E.,  4S7.]—DiheTl,  Comm'r., 
p.  1070. 
Steams  v.  Chicago,  R.  1.  cfc  P.  Ry.  Co.,  148  N.  W.,  128. 
Supreme  Court  of  Iowa,  June  29,  1914. 

Plaintiff  was  employed  by  the  Milwaukee  Company  as  a 
switchman  in  its  yards  at  Cedar  Rapids,  and  on  the  day  of  the 
accident,  which  was  on  June  17,  1910,  he  was  in  control  and 
charge  of  a  crew  consisting  of  himself,  an  engineer,  fireman, 
and  two  other  helpers,  engaged  in  switching  a  refrigerator  car 
to  the  freight  house  of  his  company,  which  was  located  some 
distance  west  of  the  Rock  Island  crossing.     *    *     *     Going 


58  SAFETY  APPLIANCE  ACTS. 


back  now  to  the  statutes  of  the  State,  we  may  remark  that  our 
own  statute  as  to  the  couplmg  of  the  air  hnes  upon  all  or  any 
given  percentage  of  cars  m  a  train  is  not  required.  And  in 
construing  this  section  we  have  held  [Carter  v.  Sioux  City  Co., 
141  N.  W.,  26]  that  it  is  not  necessary,  as  a  matter  of  law,  to 
have  any  of  the  cars  connected  up,  especially  where  the  engine 
is  spotting  cars.  So  that  it  can  not  be  said  that  plaintiff,  as  a 
matter  of  law,  violated  our  statute  in  not  having  the  air  con- 
nected up  on  the  car.  The  federal  statute  and  the  order  of  the 
Interstate  Commerce  Commission  do  make  an  absolute  rule 
upon  this  subject  and  require  a  certain  percentage  of  the  cars 
to  be  coupled.  Each  of  these  trains  was  upon  a  main  line, 
and  not  upon  side  or  passing  tracks,  and  the  Rock  Island  Com- 
pany was  engaged  in  switching  within  its  own  yards.  The 
Milwaukee  was  not  in  its  own  freight  vards,  which  were  some 
distance  westward  of  the  point  of  collision,  and  the  car  was 
being  taken  to  these  yards  from  what  are  known  as  its  '^east 
yards,''  nearly  a  mile  away. 

That  the  federal  statute  was  and  is  appMcable  to  the  case, 
although  there  is  no  showing  that  at  the  particular  time  any 
object  was  being  moved  in  interstate  commerce,  is  held  in  the 
recent  case  of  Southern  Ry.  Co.  v.  U.  S.,  222  U.  S.,  20. 

No  matter  what  our  views  upon  this  question,  that  deci- 
sion is  final  and  controlling.  But  appellee's  counsel  say  that 
it  was  the  custom  of  the  Milwaukee  Companv  not  to  observe 
this  requirement,  and  they  made  some  proof  in  this  respect, 
while  other  testimony  to  the  same  effect  was  rejected.  This 
testimony,  they  think,  was  inadmissible,  as  tending  to  reheve 
*  plaintiff  of  his  nonobservance  of  the  law,  even  though  he  had 
knowledge  of  the  custom.  The  provisions  of  this  law  were 
made  for  his  own  as  well  as  for  the  safety  of  others,  and  he 
could  not,  as  we  think,  neglect  the  observance  of  this  law, 
although  it  was  customary  for  others  in  the  employ  of  the  Mil- 
waukee Company,  as  well  as  himself,  to  disobey.  A  statute  of 
this  kind  can  not  be  avoided  by  proof  of  custom.  Surely  it 
would  be  no  defense  to  criminal  habiUty,  and,  as  a  rule,  one 
who  violates  a  criminal  law  made  for  his  own  safety  is  himself 
guilty  of  neghgence. 

The  only  other  point  made  is  that  there  is  no  requirement 
of  law  that  trains  and  engines  engaged  in  switching  should  be 
so  equipped  and  coupled.  In  other  words,  it  is  insisted  that 
the  courts  should  ingraft  an  exception  on  the  law  to  this  extent 
at  least.  We  are  not  disposed  at  this  time  to  do  more  than  say 
that  we  shall  not,  in  any  event,  acknowledge  any  exception, 
unless  it  be  to  trains  and  engines  actually  engaged  in  switching 
or  spotting  cars  within  their  own  yards,  and  not  to  trains  on 
main  lines  entering  yards,  which  are  being  used  to  take  cars 
from  some  other  places  outside  the  yards  to  be  left  there,  no 
matter  for  what  purpose. 

A  railway  crossing  is  always  an  exceedingly  dangerous 
point,  and  there  is  no  place  where  there  is  more  necessity  for  a 
full  equipment  of  brakes,  under  the  interstate  commerce  rule, 


SCOPE.  59 


than  at  such  crossings.  Under  the  testimony  the  car  was  being 
taken  from  the  Milwaukee  ''east  yard"  to  the  freight  house, 
they  being  approximately  a  mile  apart,  and  the  train  was 
required  to  cross  a  number  of  railway  and  street  crossings,  in 
addition  to  the  one  in  question.  We  are  constrained  to  hold  that 
plaintiff,  having  charge  of  the  make-up  of  this  particular  train, 
violated  the  statute,  and  that  this,  with  other  facts  which  we 
shall  presently  relate,  was  one  of  the  causes  which  contributed 
to  his  injury. — Deemer,  J.,  pp.  129,  131-132. 
U.  S.  V.  Belt  Ry.  Co.  of  Chicago  [unreported]. 

District  Court,  Northern  District  of  Illinois,  January  23, 1908. 

It  appears  in  evidence  that  the  defendant's  train  was  made  up 
of  43  freight  cars,  including  C,  R.  I.  &  P.  car  85176  and  an  engine 
and  caboose,  and  that  the  car  mentioned  contained  lumber  under 
shipment  from  a  point  in  Illinois  to  a  point  in  Wisconsin;  it  also 
appears  that  power  or  train  brakes  were  used  on  but  15  cars  com- 
posing this  train,  and  that  on  the  remainder  of  the  cars,  being  the 
difference  between  15  and  43,  the  power  or  train  brake  was  not 
used. 

The  question,  therefore,  presented  is  whether  the  Belt  Rail- 
way Company,  at  the  time  of  the  movement  of  the  train,  was 
engaged  in  interstate  commerce;  and  on  this  point  I  charge  you 
that  when  a  commodity  originating  at  a  point  in  one  State,  des- 
tined to  a  point  in  another  State,  is  put  aboard  a  car,  and  that  car 
begins  to  move,  interstate  commerce  has  begun,  and  that  inter- 
state commerce  it  continues  to  be  until  it  reaches  its  destination. 
If,  therefore,  between  the  point  of  origin  of  this  shipment  and  the 
point  of  destination,  the  car  in  which  it  is  beiag  vehicled  passes 
over  a  line  of  track  whoUy  within  a  city,  within  a  county,  within 
a  State,  the  railway  company  operating  that  line  of  track  while 
moving  such  car  is  engaged  in  interstate  commerce. 

So,  applying  this  rule  of  law,  if  it  has  been  shown  to  you  that 
on  the  occasion  named  the  Belt  Railway  Company  was  engaged 
in  interstate  commerce,  and  while  so  engaged  moved  a  train  of 
which  less  than  75  per  cent  of  the  cars  were  equipped  and  operated 
with  power  or  train  brakes  from  the  engine,  you  vnH  find  m  favor 
of  the  United  States.  If,  on  the  contrary,  it  has  not  been  so 
shown,  your  verdict  will  be  for  the  defendant — Landis,  D.  J, 
[Affirmed  by  the  Circuit  Court  of  Appeals  for  the  7  th  Circuit  in 
Belt  Ry.  Co.  of  Chicago  v.  U.  S.y  168  Fed.,  542,  ante.]    • 

Per  Contra : 

Erie  R.  Co.  V.  U.  S.,  197  Fed.,  287  [Ist  appeal]. 

Circuit  Court  of  Appeals,  3rd  Circuit,  June  21,  1912. 
The  blue  print  in  evidence  in  this  case  shows  that  Bergen,  Weehawken,  and 
Jersey  City  are  outposts  of  the  triangular  terminal  system  of  the  Erie  Railroad, 
Jersey  City  and  Weehawken  being  situate  under  4  miles  apart  on  the  Hudson 
River  and  Bergen  about  1^  miles  inland  from  Jersey  City  and  3^  miles  from  Wee- 
hawken. At  Weehawken  there  are  about  80  tracks  where  cars  are  received  by 
rail  and  lighter.  These  tracks  are  used  for  the  storage  and  preliminary  classifica- 
tion of  cars.  After  this  initial  classification  the  cars  are  either  transferred  to  other 
terminals  by  lighter  or  hauled  in  trains  to  Bergen,  where  they  undergo  a  further 
and  final  classification,  and  where  trains  are  made  up  to  go  out  over  the  road . 
*    *    *    The  question  here  involved  is  whether  in  making  such  transfers  from 


60  SAFETY  APPLIANCE  ACTS. 


the  Jersey  City  and  Weehawken  yards,  respectively,  to  the  Bergen  yard,  the  rail- 
road must  couple  up  the  air  brakes  on  such  trains  of  cars.  To  us  it  seems  clear 
that  there  was  evidence  tending  to  show  that  the  whole  triangle  formed  by  the 
Bergen,  Jersey  City,  and  Weehawken  yards  constitutes  unitedly  a  single  terminal 
classification  yard.  While  the  distance  between  two  of  these  points  is  over  3 
miles,  it  is  e\^dent  from  the  narrow  strip  of  land  that  is  left  along  the  river  front 
by  the  Palisades  that  this  wide  spread  of  space  is  topographically  required  to 
permit  the  complicated  car  transfer  and  classification  of  a  gieat  railroad's  terminal 
traffic.  *  *  *  These  tliree  yards  are  all  under  one  yardmaster,  are  all  known 
as  the  Jersey  City  Terminal,  and  cover  about  140  miles  of  track  space,  and,  as  we 
have  seen,  topographically  a  part  of  this  yard  has  to  be  located  at  Bergen  and  to 
be  reached  by  tunnel.  All  the  work  in  the  Erie  Terminal  is  done  by  switching 
crews  and  engines,  and  during  every  movement  of  the  cars  in  this  terminal  yard 
they  are  not  handled  in  any  way  by  train  crews  or  train  engines,  nor  is  there  any 
movement  by  schedule.  *  *  *  Under  these  facts  we  think  the  court  could 
not  say  to  the  jury,  as  a  matter  of  law,  the  railroad  was  guilty  of  violating  the  law. 
To  us  it  is  clear  that  this  beneficent  law  is  made  to  fulfill  its  purpose  when  it  is 
applied  to  trains  finally  made  up  for  road  service.  It  is  to  lessen  the  danger  inci- 
dent to  such  servdce,  to  averting  collisions,  to  control  train  movements  on  grades, 
to  obA^ate  as  far  as  possible  the  danger  to  men  of  working  hand  brakes  on  icy  foot- 
ings, and  other  dangers  incident  to  road  conditions,  that  this  statute  was  meant 
to  cover.  The  Government,  recognizing  that  the  statute  could  not  be  applied  to 
switching  operations,  has  not  contended  it  should  be  applied  there.  But  it  is 
urged  that  considerable  numbers  of  the  cars  initially  classified  at  the  three  respec- 
tive points  are  moved  on  the  main  freight  tracks  to  and  through  the  tunnel,  and 
that  they  constitute  trains,  and  such  movement  therefore  falls  within  the  wording 
of  the  statute,  pf  course  35  cars  coupled  together  and  drawn  by  a  locomotive 
make  a  train,  for  such  connected  cars  are  drawn  and  follow  in  the  engine's  train; 
but  this  mere  word  definition  does  not  settle  the  question  before  us.     It  is  not  a 

.  wrangle  over  mere  names,  but  rather  whether  the  railroad  is  here  doing  a  bona 
Me  switching  work  which  the  law  confessedly  was  not  meant  to  cover.  *  *  * 
We  are  pointed  to  no  conditions  incident  to  this  short  run  which  make  the  use  of 
the  air  brakes  essential  to  the  safety  of  the  shifting  crew.  The  run  is  a  brief  one. 
There  are  neither  grades  to  encounter,  stops  to  be  made,  or  protracted  exposure. 
Under  such  circumstances,  we  think  the  court  was  not  warranted  in  taking  this 
case  from  the  jury  and  itself  holding  the  law  had  been  violated.  On  the  contrary, 
we  think  it  should  have  admitted  the  rejected  evidence,  which  constitutes  the 
first  assignment  of  error,  that  these  were  yard  movements  of  cars  and  should  have 
submitted  to  the  jury  the  question  whether  the  Bergen,  Jersey  City,  and  Wee- 
hawken yards  together  were  or  were  not  in  fact  a  single  shifting  yard  and  that  the 
car  movements  in  and  between  the  same  were  switching  operations. — Buffington, 
C.  J.,  pp.  289,  290,  291. 

U.  S.  V.  Erie  R.  Co.,  212  Fed.,  853  [2nd  appeal]. 

Circuit  Court  of  Appeals,  3rd  Circuit,  April  2,  1914. 

It  would  seem,  therefore,  that  none  of  these  cases  involved  the  question 
here  involved,  namely,  the  compulsory  use  of  air  brake  equipment  in  switching 
operations.  On  that  question,  which  is  one  of  statute  construction,  we  hold  the 
Act  does  not  compel  the  air  coupling  of  cars  in  switching  movements.  We  so 
hold,  amongst  others  for  these  reasons:  First,  because  had  Congress  meant  to 
compel  air  coupled  switching,  it  would  have  said  so;  second,  by  providing 
automatic  coupling  Congress  had  already  provided  as  far  as  it  could  against  the 
avoidable  dangers  incident  to  switching;  third,  if  the  law  includes  switching, 
it  covers  all  switching  without  limitation  or  exception,  an  impracticable  and 
impossible  thing;  fourth,  if  the  Act  covered  switching,  and  Congress  meant  to 
except  any  switching  therefrom,  it  neither  did,  nor  by  language  made  it  possible 
to  now  decide  what  switching  was  excepted.  Indeed,  a  careful  study  of  this  Act 
shows  the  use  in  the  statute  of  terms  and  words  which,  in  common  use,  are  applied 
TO  road,  as  contrasted  with  switching  operations.  The  Act  deals  first  with  the 
locomotive  alone  as  distinguished  from  the  train.  It  makes  it  unlawful  for  the 
railroad '  'to  use  on  its  line" — and  line,  main  line,  is  a  word  which,  in  the  common 
speech  of  railroad  work,  distinguishes  the  line  of  the  road  from  switches  and 
terminal  yards.  But  the  Act  proceeds,  '  *to  use  on  its  line  any  locomotive 
engine  in  moving  interstate  traffic."  Surely  the  words  "in  moving  interstate 
traffic,"  in  connection  with  the  use  of  a  locomotive  on  its  line,  is  aptly  appUed 


SCOPE.  61 


to  draft  of  trains  in  their  transit  between  States.  But  the  Act  proceeds,  the 
locomotive  *  *on  its  line"  which  is  '  'moving  interstate  traffic' '  must  be  equipped 
with  "appliances  for  operating  the  train  brake  system."  Surely  these  words, 
"operating  the  train  brake  system,"  mean  that' the  system,  the  train  brake 
system,  operated  by  the  locomotive  "on  its  line"  and  in  "moving  interstate 
traffic,"  refers  to  a  running,  rather  than  a  switching,  movement.  And  the 
further  words  of  the  statute,  which  make  it  unlawful  for  the  road  '  'to  run  any 
such  train  in  such  traffic  *  *  *  that  has  not  a  sufficient  number  of  cars  in 
it  so  equipped  with  power  or  train  brakes  that  the  engineer  on  the  locomotive 
drawing  such  train  can  control  its  speed  without  requiring  brakemen  to  use  the 
common  hand  brake  for  that  purpose,"  are  words  that  aptly  describe  train 
movement.  The  operation  of '  'the  locomotive  drawing  such  train' '  is  in  marked 
contrast  with  the  push  and  pull  of  a  switching  engine,  and  *  'control  its  speed' ' 
refers  to  a  train  that  is  speeding,  for  the  appliances  must  be  such  that  '  'the 
engineer  on  the  locomotive  drawing  such  train  can  control  its  speed  without 
requiring  brakemen  to  use  the  common  hand  brake  for  that  purpose."  All 
these  terms  and  words  of  railroad  parlance  are  applicable  to  line  travel  and  fitly 
descriptive  thereof.  In  railroading,  "line"  is  contrasted  with  "switch," 
*  'yard, "  and '  'terminal";  main  line,  branch  line,  with  switches.  A '  'locomotive 
drawing  such  train' '  is  in  contrast  with  the  push  and  pull  of  a  yard  switching 
engine.  And  not  only  is  this  the  common  and  practical  meaning  of  the  words, 
but  when  the  practical  operative  consequences  of  giving  these  words  the  meaning 
here  contended  for  are  considered,  the  unwisdom  of  such  construction  is 
apparent. — Buffington,  C.  J.,  pp.  860-861. 
Chicago,  B.  &  Q.  Ry.  Co.  v.  U.  S.,  211  Fed.,  12. 

Circuit  Court  of  Appeals,  8th  Circuit,  November  28,  1913. 

Defendant  has  two  yards  at  Kansas  City,  Missouri,  one  known  as  the  Twelfth 
Street  Yard,  south  of  the  Missouri  River,  and  the  other  the  Murray  Yard  north  of 
that  river.  These  two  yards  together  constitute  a  terminal  yard.  Trains  coming 
in  from  the  west  are  broken  up  in  the  Twelfth  Street  Yard,  and  such  cars  as  are 
to  go  forward  to  eastern  points  are  distributed  upon  tracks  according  to  the  prac- 
tice in  modem  railroading.  Strings  of  these  cars  are  then  drawn  out  at  the  eastern 
end  of  the  system  of  tracks  by  a  switch  engine,  and  transferred  to  the  Murray 
Yard,  where  they  are  again  redistributed  according  to  the  connecting  carriers 
who  are  to  move  them  forward  to  eastern  points.  The  distance  between  the  yards 
is  about  two  miles.  The  line  on  the  bridge  across  the  Missouri  River  is  a  single 
line,  and  is  about  3,000  feet  long.  The  tracks  between  the  two  yards  are  inter- 
sected by  the  terminal  road  at  Kansas  City.  The  line  across  the  bridge  is  used  not 
only  by  defendant,  but  by  the  Wabash  and  Rock  Island  Railroad  Companies  for 
both  freight  and  passenger  trains.  The  movement  of  trains  in  this  territory  is 
controlled  by  block  signals.  Ti-ains  such  as  those  here  complained  of  have  no 
schedule  and  are  not  under  the  control  of  the  train  dispatcher,  but  are  moved  by 
the  yardmaster.     *    *    * 

It  is  not  controverted  by  the  Go-\emment  that  the  provisions  of  the  Safety 
Appliance  Act  in  regard  to  air  brakes  have  not  heretofore  been  regarded  as  appli- 
cable to  switching  operations.  This  has  been  the  interpretation  of  executive 
officers  charged  with  the  enforcement  of  the  Act,  and  is  justified  by  the  language 
of  the  statute.  The  words  "on  its  line,"  "in  moving  interstate  traffic,"  "to  run 
any  such  train  in  such  traffic,"  are  properly  applicable  to  trains  mo\dng  from 
point  to  point  rather  than  to  switching  operations.  We  do  not  think  the  Act  of 
1903  was  intended  to  make  any  change  in  the  original  statute  in  this  respect.  *  *  * 
The  word  "train  "  of  course  covers  any  string  of  cars  hauled  by  an  engine.  But  if 
the  statute  is  to  be  applied  to  all  trains  falling  within  this  definition,  then  it  would 
cover  all  movements  of  cars  by  means  of  a  locomotive  in  switching  operations, 
and  it  would  make  no  difference  whether  that  movement  was  on  a  main  track  or  a 
siding.  Such  a  result  reduces  the  reasoning  to  an  absurdity,  because  its  applica- 
tion to  railroads  would  operate  as  an  embargo  upon  commerce.  Because  of  these 
results,  as  well  as  from  the  language  of  the  statutes,  we  are  of  the  opinion  that 
the  air-brake  sections  of  the  Safety  Appliance  Acts  were  not  intended  to 
apply  to  switching  operations. — Amidon,  D.  /.,  pp.  16-17-18. 


62  SAFETY  APPLIANCE  ACTS. 


See  also: 

U.  S.  V.  New  York  Central  &  H.  R.  R.  Co.,  205  Fed.,  428. 

District  Court,  Western  District  of  New  York,  May  26,  1913. 

The  undisputed  facts  show  that  the  train,  consisting  of  39  empty  freight  cars, 
only  25  of  which  were  equipped  with  air  brakes,  was  transferred  from  the  yard  of 
the  defendant  at  Charlotte  Junction,  N.  Y.,  to  its  Rochester  yard  terminal,  a  dis- 
tance of  4  miles,  where  the  cars  were  customarily  classified  and  inspected.    *    *   * 

Assuming  that  the  locomotive  and  cars  in  question  constituted  a  train,  as 
that  term  is  defined  in  Webster's  Dictionary  and  in  various  adjudications  cited  in 
U.  S.  y.  Grand  Trunk  Ry.  Co.,  203  Fed.^  775,  recently  decided  by  this  Court,  and 
assuming  that  in  order  to  reach  the  main  yards  it  was  necessary  for  such  train  to 
go  over  part  of  the  through  highway  over  which  interstate  traffic  was  customarily 
transported,  it  must  nevertheless,  I  think,  be  conceded  by  the  Government  that 
the  Safety  Appliance  Acts  were  never  intended  to  apply  to  switching  operations. 
Erie  R.  Co.  v.  U.  S.,  197  Fed.,  287.  The  primary  object  of  the  statute  was  to 
require  railroads  to  equip  trains  engaged  in  interstate  traffic  with  air  brake  appli- 
ances, so  as  to  mininuze  the  dangers  to  the  passengers  and  crews;  but  obviously 


it  was  never  intended  to  require  such  appliances  to  be  coupled  up  or  connected 
while  cars  are  being  hauled  by  a  switching  engine  from  one  yard  to  another,  or 
shunted  out  at  different  points,  and  not  actually  engaged  in  interstate  traffic — 
Hazel,  D.  /.,  pp.  428,  429. 
Rosney  v.  Erie  R.  Co.,  135  Fed.,  311. 

(a).  The  distance  a  defective  car  is  hanled  in  violation  of  the  Acts 
is  immaterial. 
U.  S.  V.  Denver  c&  R.  G.  R.  Go.,  163  Fed.,  519. 

Circuit  Court  of  Appeals,  8th  Circuit,  August  22,  1908. 

The  criticism  made  of  this  allegation  is  that  it  does  not 
specify  how  far  the  hauling  was  continued,  or  its  purpose,  and 
is  silent  respecting  any  actual  use  of  the  defective  coupler;  but 
the  answer  to  this  is  that  the  allegation  does  sufficiently  show 
an  actual  and  substantial  hauling  in  moving  interstate  traffic 
and  that,  this  being  so,  it  is  immaterial,  under  the  statute,  how 
far  the  hauling  was  continued  or  whether  there  was  any  actual 
use  of  the  defective  coupler. —  Van  Devanter,  G.  J.,  p.  521. 
TJ,  S,  V.  Gentral  of  Georgia  Ry.  Go.,  157  Fed.,  893. 

District  Court,  Northern  District  of  Alabama,  Sept.  27,  1907. 
While  the  evidence  does  not  show  that  the  defendant  hauled 
the  car  across  the  state  line,  still  the  defendant  is  engaged  in 
interstate  traffic,  no  matter  how  short  the  movement,  if  the 
traffic  hauled  is  in  course  of  movement  from  a  point  in  one 
State  to  a  point  in  another. — Hundley,  D.  J.,  p.  894. 
U.  S.  V.  Southern  Pacific  Go.,  167  Fed.,  699. 

District  Court,  Northern  District  of  California,  Dec.  4,  1908. 
The  penalty  under  the  Safety  Appliance  Act  applies  to 
every  defective  car  hauled  contrary  to  its  provisions,  whether 
or  not  each  car  was  hauled  separately  or  in  a  train  together; 
and  it  matters  not  how  far  each  car  was  hauled.  It  is  the  use 
of  the  car  in  a  defective  condition  that  the  law  seeks  to  prevent, 
and  not  the  length  of  the  haul. — De  Haven,  D.  J.,  p.  701. 
U.  S.  V.  Northern  Pacijic  Ry.  Go.,  [unreported]. 

District  Court,  Western  District  of  Washington,  Dec.  5,  1913. 

It  is  no  defense  for  the  defendant  to  say  that  a  car  defective 

as  to  safety  appliances  was  only  hauled  a  short  distance,  or  that 

during  such  haul  no  attempt  was  made  nor  became  necessary  to 

actually  use  the  appliance  complained  of  as  being  defective. 


SCOPE.  63 


The  length  of  the  haul  is  not  material  nor  is  the  prohibition  in 
the  Act  aimed  at  the  use  of  any  particular  appliance;  that  is,  it 
is  not  necessary  for  the  Government  to  show  that  an  employee 
actually  jeopardized  his  life  or  limb  in  attempting  to  use  some 
particular  defective  appliance. — Cushman,  B.  J. 
U.  S.  V.  Southern  Pacific  Co.,  154  Fed.,  897. 

18.  The  Acts  impose  upon  all  carriers  subject  to  their  terms  an  obli- 
gation to  maintain  repair  points  at  suitable  intervals  along  their 
lines  of  railroad,  and  to  provide  at  such  points  such  appropriate 
material  and  facilities  for  repair  as  will  enable  them  to  comply 
with  the  requirements  of  the  statute. 
TJ,  S.  V.  Atchison,  T.  cfc  S.  F.  Ry.  Co.,  167  Fed.,  696. 

District  Court,  Northern  District  of  California,  Dec.  1,  1908. 
You  are  instructed  that  it  is  the  duty  of  a  railroad  company, 
subject  to  the  provisions  of  the  Safety  Appliance  Act,  to  estab- 
lish reasonable  repair  points  along  its  line  of  railway  for  the 
making  of  repairs  of  the  kmd  necessary  to  comply  with  the  law — 
that  is  to  say,  repair  points  at  places  where  they  are  reasonably 
required;  that  it  is  also  the  duty  of  such  railroad  company  to 
have  on  hand  at  such  repair  pomts  the  material  and  facilities 
necessary  to  make  all  such  repairs,  and  that  such  railway  com- 
pany must  use  reasonable  foresight  in  providing  material  and 
facilities  for  such  purpose;  *  *  *. — Be  Haven,  B.  J.,  p.  698. 
TJ,  S.  V.  Southern  Pacific  Co.,  167  Fed.,  699. 

District  Court,  Northern  District  of  Calif orma,  Dec.  4,  1908. 
And  it  is  the  duty  of  every  railway  company  subject  to  this 
law  to  esta,blish  reasonable  repair  points  along  its  line  of  railroad 
for  the  making  of  all  repairs  necessary  to  comply  with  the  law; 
that  is,  it  is  its  duty  to  establish  repair  points  at  all  places  along 
the  line  of  road  where  it  is  reasonably  necessary  that  they  should 
be  established,  in  order  faithfully  to  comply  with  the  law. 

Inasmuch  as  inability  alone  will  excuse  a  company  from 
a  literal  compliance  with  the  law,  it  is  the  duty  of  such  company 
to  have  the  material  and  facilities  on  hand  at  every  repair  point 
to  make  repairs  of  the  kind  necessary  to  comply  with  the  provi- 
sions of  the  Safety  Appliance  Act.— Be  Haven,  B.  J.,  p.  701. 
U.  S.  V.  Atchison,  T.  <&  S.  F.  Ry.  Co.,  [unreported]. 

District  Court,  Fourth  District  of  Arizona,  July  17,  1908. 
Inasmuch  as  inability  alone  will  excuse  the  common  car- 
rier from  a  literal  compliance  with  the  Act,  it  is  the  duty  of 
the  common  carrier  to  nave  the  material  and  facilities  on  hand 
at  each  repair  point  which  may  be  needed  to  make  repairs  of  the 
kind  necessary  to  comply  with  the  requirements  of  the  Safety 
Appliance  Acts.  It  is  tne  duty  of  the  common  carrier  to  use 
reasonable  foresight  in  providing  material  and  facilities  for  such 
purpose. — Sloan,  B.  J. 
TJ.  S.  V.  Baltimore  &  0.  R.  Co.  [unreported]. 

District  Court,  Northern  District  of  West  Virginia,  Jan.  18, 1909. 

Now,  that  you  may  understand  that  more  fully,  let  me  say  to 

you  that  it  is  entirely  reasonable  that  a  railroad  company  should 


64  SAFETY  APPLIANCE  ACTS. 


be  required  to  maintain  repair  shops  or  repair  material  and  make 
inspections  and  repairs  at  places  within  reasonable  distances  of 
each  other;  that  in  establisning  such  repair  points  the  company 
has  the  right,  in  the  ordinary  operation  of  their  trains  between 
those  repair  points,  when  a  train  is  in  operation  and  defects  arise, 
reasonably,  to  carry  the  car  the  appliances  on  which  are  broken 
or  defective,  to  the  first  repair  point,  but  they  do  not  have  the 
right,  having  carried  it  to  that  point,  to  take  it  beyond  that 
point  without  discovering  and  without  making  the  necessary 
repairs  to  those  safety  appliances  attached  to  that  car,  and  if 
they  do  carry  it  beyond  tnat  point  they  are  liable  to  the  penalty 
provided  for  by  this  law. — Dayton^  D.  J . 
U.  S.  V.  Southern  Padjic  Co.  [unreported]. 

District  Court,  Di-itrict  of  Nevada,  November  2-1,  1909. 

It  is  the  duty  of  a  railroad  C)mpany,  subject  to  the  pro- 
visions of  the  Safety  Appliance  Act,  to  establish  reasonable 
repair  points  along  its  line  of  railway  for  the  making  of  repairs  of 
the  kind  necessary  to  comply  with  the  law — that  is  to  say,  repair 
points  at  places  where  they  are  reasonably  required;  it  is  also 
the  duty  of  such  a  company  to  have  on  hand  at  such  repair  points 
the  material  and  facilities  necessary  to  make  all  such  repairs,  and 
such  railway  company  must  use  reasonable  foresight  in  providing 
the  material  and  facilities  for  such  purpose. — Farrington,  D.  J, 

19.  The  Acts  extend*  to  the  Island  of  Porto  Bico: 

American  R.  Co.  of  Porto  Rico  v.  Bidricksen,  227  U.  wS.,  145. 
Supreme  Court,  January  27,  1913. 

That  it  [Employers'  Liability  Act]  did  extend  to  Porto  Rico 
was  expressly  decided  in  American  R.  Co.  of  Porto  Rico  v.  Birch, 
224  U.  S.,  547.  The  question  as  to  whether  the  Safety  AppUance 
Act  extended  to  that  island  was  reserved  in  the  Birch  Case.  We 
are  of  opinion  that  the  Act  does  extend  to  Porto  Rico.  *  *  * 
It  is  not  easy  to  see  how  eUect  can  be  given  to  the  Employers' 
Liability  Act  of  1908  in  Porto  Rico  without  concluding  that  this 
Act  of  1903  is  also  in  force  there,  since  the  former,  as  pointed 
out  in  the  Birch  Case,  provides  in  its  third  section  'Hhat  no 
employee  who  may  be  injured  or  killed  shall  be  held  to  have 
been  guilty  of  contributory  negligence  in  any  case  where  the 
violation  by  such  common  carrier  of  any  statute  enacted  for 
the  safety  of  employees  contributed  to  the  injury  or  death." 
The  fourth  section  contains  a  like  provision  concerning  assump- 
tion of  risk.  These  considerations  lead  to  the  conclusion  that 
the  court  below  did  not  err  in  ruling  that  the  Act  extended  to 
Porto  Rico. — Lurton,  Justice,  pp.  148-149. 

*  By  Executive  Order  ol  President  Roosevelt,  dated  January  6,  1909,  the  require- 
ments of  the  Acts  were  extended  to  the  Panama  Canal  Zone. 


POWER  BRAKES.  65 


D.  POWER  DRIVING-WHEEL  BRAKES  AND 
TRAIN-BRAKE  SYSTEMS. 

1.  Provisions  of  the  Law: 

That  from  and  after  the  first  day  of  January,  eighteen  hundred  and 
ninety-eight,  it  shall  he  unlawful  for  any  conunon  carrier  engaged  in 
interstate  commerce  by  railroad  to  use  on  its  line  any  locomotive  engine 
in  moving  interstate  traflS.c  not  equipped  with  a  power  driving-wheel 
brake  and  appliances  for  operating  the  train-brake  system,  or  to  run 
any  train  in  such  traffic  after  said  date  that  has  not  a  sufiB.cient  num- 
ber of  cars  in  it  so  equipped  with  p'ower  or  train  brakes  that  the 
engineer  on  the  locomotive  drawing  such  train  can  control  its  speed 
without  requiring  brakemen  to  use  the  common  hand  brake  for  that 
purpose.— ^ec.  1,  Act  March  2,  1893  [27  Stat,  at  L.,  531]. 

That  whenever,  as  provided  in  said  Act,  any  train  is  operated  with 
power  or  train  brakes,  not  less  than  fifty  per  centum  of  the  cars  in  such 
train  shall  have  their  brakes  used  and  operated  by  the  engineer  of  the 
locomotive  drawing  such  train;  and  all  power-braked  cars  in  such  train 
which  are  associated  together  with  said  fifty  per  centum  shall  have 
their  brakes  so  used  and  operated;  and,  to  more  fully  carry  into  effect 
the  objects  of  said  Act,  the  Interstate  Commerce  Commission  may, 
from  time  to  time,  after  full  hearing,  increase  the  minimum  percentage 
of  cars  in  any  train  required  to  be  operated  with  power  or  train  brakes 
which  must  have  their  brakes  used  and  operated  as  aforesaid;  and 
failure  to  comply  with  any  such  requirement  of  the  said  Interstate  Com- 
merce Commission  shall  be  subject  to  the  like  penalty  as  failure  to 
comply  with  any  requirement  of  this  section. — Sec.  2,  Act  March  2,  1903 
[32  Stat.  atL.,  943]. 

It  is  ordered,  That  on  and  after  September  1,  1910,  on  all  railroads 
used  in  interstate  commerce,  whenever,  as  required  by  the  Safety  Ap- 
pliance Act  as  amended  March  2,  1903,  any  train  is  operated  with  power 
or  train  brakes,  not  less  than  86  per  cent  of  the  cars  of  such  train  shall 
have  their  brakes  used  and  operated  by  the  engineer  of  the  locomotive 
drawing  such  train,  and  all  power-brake  cars  in  every  such  train  which 
are  associated  together  with  the  86  per  cent  shall  have  their  brakes  so 
used  and  operated. — Order  of  the  Commission  of  June  6,  1910. 

(a).  ''Associated,"  as  used  in  section  2  of  the  Act  of  1903,  defined. 
Lyon  V.  Charleston  &   W.  C.  By.  Co.,  56  S.  E.,  18. 

Supreme  Court  of  South  Carolina,  December  17,  1906. 

The  statute  does  not  require  all  cars  which  may  be  equipped 
with  power  brakes  to  be  coupled  or  associated  together  but  only 
50  per  cent  of  such  cars,  but  it  does  require  all  that  may  have 
been  equipped  with  power  brakes  and  actually  associated  with 
50  per  cent  to  be  controlled  by  the  engineer  from  the  locomotive. 
The  statute  contemplates  and  allows  that  there  may  be  cars 
in  the  train  equipped  with  air  brakes  and  not  associated  with 
the  50  per  cent  operated  from  the  engine.  The  word  ^'asso- 
ciated," as  here  used,  manifestly  means  the  cars  immediately 
connected  with  the  50  per  cent  equipped  with  power  brakes 
and  operated  from  the  engine;  and  tnose  associated  cars  are 
also  required  to  be  operated  from  the  engine.  But  the  terms 
of  the  statute  not  only  fail  to  require  all  cars  of  the  train  to  be 

50611—15 5 


66  SAFETY  APPLIANCE  ACTS. 

equipped  with  air  brakes  operated  from  the  engine,  but  im- 
pliedly excludes  such  requirement,  by  expressing  the  require- 
ment that  such  cars  when  associated  with  the  minimum  number 
of  cars  shall  be  so  equipped. —  Woods,  J.,  p.  22.  [The  minimum 
percentage  of  power  or  train-braked  cars  to  be  used  and  operated 
was  by  order  oi  the  Commission  dated  November  15, 1905,  increased 
from  50  per  cent,  to  75  per  cent.,  and  by  order  of  June  6,  1910,  to 
85  per  cent.] 

2.  In  computing  the  percentage  of  operative  air-brake  equipment  in 

any  given  train,  the  engine  and  tender  are  to  be  counted  as  two 
cars. 
U.  S.  V.  Qhesapeake  <&  0.  R]i.  Oo.  [unreported]. 

District  Court,  Southern  District  of  West  Virginia,  Dec.  2,  1908. 
Now,  I  think  that  is  a  correct  interpretation  of  the  law,  that 
in  determining  the  proportion  of  cars  controlled  by  air  you  should 
count  the  engine  and  the  tender  as  two  of  the  cars,  they  being,  unless 
shown  to  be  otherwise,  equipped  with  air,  because  the  engineer 
controls  the  air  from  the  engine. — Keller,  D.  J. 

3.  The  Acts  do  not  directly  prohibit  the  use  of  individual  cars  on  which 

the  air  brakes  have  been  "cut  out." 
U.  S.  V.  Baltimore  cfe  0.  R.  Co.,  176  Fed.,  114. 

District  Court,  Western  District  of  Pennsylvania,  Jan.  18,  1910. 
It  was  admitted  at  the  trial  that  said  four  cars  were  defec- 
tive and  out  of  repair.  It  did  not  appear  how  long  their  brakes 
had  been  unused.  The  testimony  showed  that  they  had  their  air 
''cut  out";  that  is,  cut  off  in  the  pipes  extending  from  the  main 
air  line  of  the  train  to  the  brakes.  The  air  was  not  interfered 
with  in  passing  through  said  cars  to  other  cars.  It  seems  plain 
that  with  brakes  cut  out  for  defects  they  ceased  to  be  power- 
braked  cars  and  became  part  of  the  allowed  percentage  offhand- 
braked  cars.  The  Act  nowhere  imposes  a  penalty  for  using  an 
air-braked  car  with  a  cut-out  brake,  as  it  does  for  using  one  with 
a  defective  coupler,  or  one  without  grab-irons  or  handholds. — 
Orr,  D.  J.,  pp.  118-119. 

4.  In  the  absence  of  evidence  of  insufficient  air-brake  equipment,  the 

use  of  handbrakes,  not  to  control  the  speed  of   a   train  but  to 
insure  the  safety  of  its  movements,  is  not  a  violation  of  the  Acts. 
TJ.  S.  V.  Baltimore  &  0,  R.  Co.,  176  Fed.,  114. 

District  Court,  Western  District  of  Pennsylvania,  Jan.  18, 1910. 
That  the  Act  of  189.3  and  its  amendments  did  not  prohibit 
the  use  of  hand  brakes  is  clear.  There  is  no  such  prohibition  in 
them.  The  first  section  of  the  Act  of  1893  intends  that  the  engi- 
neer should  control  the  speed  of  the  train  without  requiring 
brakemen  to  use  the  common  hand  brake  for  that  purpose.  The 
power  to  the  Interstate  Commerce  Commission  to  extend  the 
time  for  compliance  with  the  Act  and  to  enlarge  the  minimum 
requirement,  and  the  indefinite  extension  as  indicated  by  fixing 
the  minimum  at  75  per  cent,  all  support  the  same  view.  *  *  * 
It  is  urged,  however,  that  the  air-brake  provision  is  so  similar  to 
the  coupler  provision  of  the  Act  (in  the  second  section)  that 
decisions  construing  the  latter  should  apply  to  the  former.  The 
coupler  provision  of  the  Act  makes  it  unlawful  to  use  any  car  in 


POWER  BRAKES.  67 


interstate  traffic  ''not  equipped  with  couplers  coupling  auto- 
matically by  impact,  and  which  can  be  uncoupled  without  the 
necessity  of  men  going  between  the  cars."  Clearly  it  prohibits 
the  use  of  certain  couplers.  As  stated  in  Jolmson  v.  Southern 
Pacific  Co.,  196  U.  S.,  1,  19,  the  test  of  compliance  is  whether 
men  must  go  between  the  cars  to  couple  or  uncouple  them.  The 
Act  does  not  prohibit  men  from  going  between  the  cars.  It  is  a 
well-known  fact,  and  admitted  by  plaintiff  at  the  trial,  that  men 
are  required  to  go  between  the  cars  for  the  purpose  of  connecting 
the  air  line  of  the  power-brake  system  in  use  as  required  by  the 
Act.  Proof  of  the  mere  fact  that  men  would  go  between  the  cars 
would  not  be  proof  that  the  couplings  were  not  such  as  were 
required.  Just  as  in  the  case  at  bar,  proof  of  the  mere  fact  that 
hand  brakes  were  used  on  the  Sand  ratch  grade  would  not  be 
evidence  that  the  trains  were  not  properly  equipped  with  the 
requisite  number  of  power-brake  cars. — Orr,  D.  J.,  pp.  117-118. 

The  requirement  of  efficient  air-brake  equipment  presupposes  that 
such  equipment  shall  be  inspected  at  terminals. 

U.  S.  V.  Erie  R.  Co.,  212  Fed.,  853. 

Circuit  Court  of  Appeals,  3d  Circuit,  April  2,  1914. 

These  proofs  show  that  the  air  coupling  of  trains,  such  as 
covered  by  the  present  indictments,  to  make  the  switch  movement 
through  the  tunnel  and  between  the  Bergen,  Jersey  City,  and 
Weehawken  subyards,  would  require  a  delay  of  1  hour  and  25 
minutes  in  the  movement  of  eacn  train.     In  this  connection  we 
pass  by  as  untenable  the  contention  of  the  Government  that 
part  oi  the  delay  might  be  avoided  b}^  dispensing  with  testing; 
that  the  Government  officers  would  be  satisfied  with  coupling. 
We  can  not  accede  to  this,  and  we  think  on  mature  reflection  it 
would  not  be  pressed.     It  suffices  to  say  that  if  Congress  meant 
that  cars  were  to  be  air  coupled  while  being  switched,  it  did  not 
intend  to  relieve  the  railroad  from  a  thorough  inspection  of  such 
couplings  before  they  were  used.     It  would  not  only  be  negli- 
gence for  the  company  to  fail  to  so  inspect,  but  the  manifest 
injustice  of  leading  men  to  place  reliance  on  the  efficiency  of 
untested  appliances  borders  so  near  on  positive  and  misleading 
wrong  that  we  dismiss  such  contention  without  further  discus- 
sion.    We  hold  that  air  coupling  in  switching  was  not  included 
in  the  statute.     If  we  are  wrong  in  that,  if  air-coupled  switching 
is  the  statutory  duty,  then  there  must  go  with  it  such  prelim- 
inary tests  of  such  appliances  as  will  insure  their  fitness  to  fulfill 
the  statutory  purposes  in  view,  namely,  that  the  engineer  on  the 
locomotive  drawing  such  train  be  able  to  control  its  speed  with- 
out requiring  brakemen  to  use  the  common  hand  brake  for  that 
purpose.     To  forego  inspection  and  the  time  needed  therefor  is 
not  to  be  countenanced.     The  mere  fact  that  the  cars  in  these 
terminals  come  from  other  systems,  whose  standards  of  mainte- 
nance differ,  would  of  itself  require  a  more  careful  and  thorough 
test  and  inspection  before  the  cars  were  subjected  to  the  exactions 
of  an  air-coupled  service. — Buffington,  C.  J.,  p.  861. 

The  air-brake  provisions  of  the  Acts  apply  no  less  to  inter-yard 
or  switching  movements  than  to  main  line  operations.  See 
Item  C-17,  pp.  49,  53,  ante. 


68  SAFETY  APPLIANCE  ACTS. 


E.  COUPLERS. 

1.  Provisions  of  tlie  Law: 

That  on  and  after  the  first  day  of  January,  eighteen  hundred  and 
ninety-eight,  it  shall  be  unlawful  for  any  such  common  carrier  to  haul 
or  permit  to  be  hauled  or  used  on  its  line  any  car  used  in  moving 
interstate  traflSLc  not  equipped  with  couplers  coupKng  automatically 
by  impact,  and  which  can  be  uncoupled  without  the  necessity  of  men 
going  between  the  ends  of  the  cars. — Sec.  2,  Act  March  2,  1893  [27  Stat,  at 
L.,  531]. 

That  the  provisions  and  requirements  of  the  Act  entitled  "An  Act 
to  promote  the  safety  of  employees  and  travelers  upon  railroads  by 
compelling  common  carriers  engaged  in  interstate  commerce  to  equip 
their  cars  with  automatic  couplers  and  continuous  brakes  and  their 
locomotives  with  driving-wheel  brakes,  and  for  other  purposes," 
approved  March  second,  eighteen  hundred  and  ninety- three,  and 
amended  April  first,  eighteen  hundred  and  ninety-six,  shall  be  held  to 
apply  to  common  carriers  by  railroads  in  the  Territories  and  the  Dis- 
trict of  Columbia  and  shall  apply  in  all  cases,  whether  or  not  the 
couplers  brought  together  are  of  the  same  kind,  make,  or  type;  and 
the  provisions  and  requirements  hereof  and  of  said  Acts  relating  to 
•  train  brakes,  automatic  couplers,  grab  irons,  and  the  height  of  draw- 
bars shall  be  held  to  apply  to  all  trains,  locomotives,  tenders,  cars, 
and  similar  vehicles  used  on  any  railroad  engaged  in  interstate  com- 
merce, and  in  the  Territories  and  the  District  of  Columbia,  and  to  all 
other  locomotives,  tenders,  cars,  and  similar  vehicles  used  in  connec- 
tion therewith,  excepting  those  trains,  cars,  and  locomotives  exempted 
by  the  provisions  of  section  six  of  said  Act  of  March  second,  eighteen 
hundred  and  ninety-three,  as  amended  by  the  Act  of  April  first, 
eighteen  hundred  and  ninety-six,  [i.  €.,  trains  composed  of  four-wheel  cars  or 
to  trains  composed  of  eight-wheel  standard  logging  cars  where  the  height  of  such 
car  from  top  of  rail  to  center  of  coupling  does  not  exceed  twenty-five  inches,  or  to 
locomotives  used  in  hauling  such  trains  when  such  cars  or  locomotives  are  exclu- 
sively used  for  the  transportation  of  logs']  or  which  are  used  upon  street 
railways.— iSec.  7,  Act  March  2,  1903  [32  Stat,  at  L.,  943]. 

2.  The  provision  of  the  Act  of  1893  that  couplers  shall  be  operative 

'^  without  the  necessity  of  men  going  between  the  ends  of  the 
cars"  applies  to  coupling  as  well  as  to  uncoupling  operations. 

Johnson  V.  Southern  Pacific  Co.,  196  U.  S.,  1. 
Supreme  Court,  December  19,  1904. 

We  dismiss  as  without  merit  the  suggestion,  which  has  been 
made,  that  the  words  "without  the  necessity  of  men  ^oing 
between  the  ends  of  the  cars,"  which  are  the  test  of  comphance 
with  section  2,  apply  only  to  the  act  of  uncoupling.  The  phrase 
literally  covers  both  coupling  and  uncoupling,  and  if  read,  as 
it  should  be,  with  a  comma  after  the  word  '^uncoupled,"  this 
becomes  entirely  clear. — Fuller,  Chief  Justice,  pp.  18-19. 

Chicago,  M.  cSc  St..  P.  Ry.  Co.  v.  Voellcer,  129  Fed.,  522;  U.  S. 
V.  Chicago,  M.  cfc  St.  P.  By.  Co.,  149  Fed.,  486;  V.  S.  v. 
Central  of  Georgia  Ry.  Co.,  157  Fed.,  893;  If.  S.  v.  Nevada 
County  N.  G.  Ry.  Co.,  167  Fed.,  695;  Southern  Ry.  Co.  v.  Sim- 
mons, 55  S.  E..  459;  Montgomery  v.  Carolina  &  N.  W.  R.  Co., 
80S.  E.,  83. 


COUPLERS.  69 


3.  The  Acts  require  tliat  couplers  shall  be  operative  on  both  ends* 
of  cars: 

U.  S.  V.  Denver  cfc  R.  G.  R.  Co,,  163  Fed.,  519. 

Circuit  Court  of  Appeals,  8th  Circuit,  August  22,  1908. 

An  all-sufficient  answer  to  this  contention  [that  an  uncoup- 
ling between  a  defective  and  an  operative  coupler  may  be  effected 
by  means  of  the  lever  attached  to  the  operative  coupler]  is  that 
the  statute  in  terms  requires  that  every  car  to  which  it  applies 
shall  be  equipped  with  '^couplers"  of  a  prescribed  operative  type, 
and  the  reasonable  attainment  of  its  manifest  object  renders  it 
necessai;^  that  the  coupler  at  each  end  of  the  car  shall  conform  to 
this  requirement. —  Van  Devanter,  0.  J.,  p.  521. 

U.  S.  V.  Central  of  Georgia  Ry.  Co.,  157  Fed.,  893. 

District  Court,  Northern  District  of  Alabama,September  27, 1907. 
The  Safety  Appliance  Act  requires  that  each  coupler  on  a  car 
be  operative  in  itself,  so  that  an  employee  will  not  have  to  go  to 
another  car  to  couple  or  uncouple  the  car  in  question.  The  pro- 
visions as  to  coupling  and  uncoupling  apply  to  the  coupler  on 
each  end  of  every  car  subject  to  the  law.  It  is  wholly  immaterial 
in  what  condition  was  the  coupler  on  the  adjacent  car  or  any  other 
car  or  cars  to  which  each  car  sued  upon  was,  or  was  to  be,  coupled. 
The  equipment  on  each  end  of  these  two  cars  must  be  m  such 
condition  that  whenever  called  upon  for  use  it  can  be  operated 
without  the  necessity  of  men  gomg  between  the  ends  of  the  cars. — 
Hundley,  D.  J.,  pp.  894-895. 

U.  S.  Y.'^  PUladelpUa  cfe  R.  Ry.  Co.,  160  Fed.,  696;  U,  S.  v. 
Louisville  <&  N.  R.  Co.,  162  Fed.,  185;  U.  S.  v.  Chicago  Great 
Western  Ry.  Co.,  162  Fed.,  775;  U.  S.  v.  Nevada  County  N.  G.  R. 
Co.,  167  Fed.,  695;  V.  S.  v.  Atchison,  T.  c&  S.  F.  Ry.  Co.,  167 
Fed.,  696;  U.  S.  v.  Southern  Pacific  Co.,  167  Fed.,  699;  U.  S.  v. 
Baltimore  cfc  0.  R.  Co.,  170  Fed.,  456;  U.  S.  v.  Southern  Ry.  Co., 
170  Fed.,  1014;  U.  S.  v.  Wahash  R.  Co.,  D.  C,  S.  D.  Illinois, 
June  6,  1907,  Humphrev,  D.  J.  [unreport.. d];  U.  S.  v.  Philadel- 
phia &  R.  Ry.  Co.  and  tl.  S.  v.  Lehigh  Valley  R.  Co.,  D.  C,  E.  D. 
Pennsylvania,  Mar.  17,  1908,  McPherson,  D.  J.  [unreported]; 
U.  S.  V.  Pennsylvania  R.  Co.,  D.  C,  E.  D.  Pennsylvania,  Mar. 
18,  1908,  McPherson,  D.  J.  [unreported];  U.  S.  v.  Atchison,  T,  cfe 
S.  F.  Ry.  Co.,  D.  C,  D.  Arizona,  July  17,  1908,  Sban,  D.  J. 
[unreported];  JJ.  S.  v.  ChesapeaJce  c&  &.  Ry.  Co.,  D.  C,  S.  D. 
West  Virginia,  Dec.  2,  1908,  Keller,  D.  J.  [unreported];  U.  S.  v. 
Pennsylvania  R.  Co.,  D.  C,  W.  D.  Pennsylvania,  Nov.  3,  1909, 
Orr,  D.  J.  [unreported];  U.  S.  v.  Southern  Pacific  Co.,D.  C,  D. 
Nevada,  Nov.  24,  1909,  Farrington,  D.  J.  [unreported]. 
But  see: 

U.  S.  V.  Northern  Pacific  Ry.  Co.  [unreported]. 

District  Court,  Western  District  of  Wasliington,  Dec.  5,  1913. 

In  connection  with  the  claim  regarding  this  caboose,  that 

the  coupling  device  was  out  of  repair,  and  that  it  was  necessary 

*The  end  of  the  car  on  which  the  brake  staff  is  located  is  known  in  practice  as  the 
"J5  "  end,  the  opposite  end  of  the  car  being  known  as  the  "-4"  end.  When  there 
are  two  brake  staffs  on  the  same  car,  as  well  as  on  cars  without  any  brake  staff, 
the  end  of  the  car  toward  which  the  push  rod  travels  is  knowTi  as  the  "S"  end. 


70  SAFETY  APPLIANCE  ACTS. 


for  some  one  to  go  in  between  the  ends  of  the  cars  to  uncouple 
them,  there  was  some  testimony  by  the  conductor  that  he  went 
to  the  other  end  of  the  caboose  and  removed  the  clevis  and 
repaired  this  defect.  You  \vi\\  understand  that  if  there  was  one 
end  of  the  caboose  that  was  not  in  use,  if  it  was  not  actually  used 
during  the  operations  of  this  train,  that  it  would  not  be  a  violation 
of  the  law  it  the  one  end  that  was  in  use  was  properly  equipped, 
because  it  would  not  be  necessary  for  a  man  to  go  around  to  the 
hind  end  of  the  train  to  do  any  coupling  or  uncoupling. — Gush- 
man,  D.  J. 

— (a).  But  the  Acts  do  not  require  automatic  couplers  between  engines 
and  tenders. 
Pennell  v.  Philadelphia  &  R.  By.  Co.,  231  U.  S.,  675. 
Supreme  Court,  Januai-y  5,  1914. 

Engine  and  tender  are  a  single  thing;  separable,  it  may  be, 
but  never  separated  in  their  ordinary  and  essential  use.  The 
connection  between  them ;  that  is,  between  the  engine  and  tender, 
it  was  testified,  was  in  the  nature  of  a  permanent  coupling,  and 
it  was  also  testified  that  there  was  practically  no  opening  between 
the  engine  and  tender,  and  that  attached  to  the  engine  was  a  draw- 
bar which  fitted  in  the  yoke  of  the  tender,  and  the  pin  was  dropped 
down  to  connect  drawbar  and  yoke.  The  necessary  deduction 
from  this  is  that  no  dangerous  })Osition  was  assumed  by  an  em- 
ployee in  coupHng  the  engine  and  tender  for  the  reason  that  the 
pin  was  dropped  through  the  bar  from  the  tank  of  the  tender. 
The  case  at  bar,  therefore,  is  not  brought  either  within  the  mis- 
chief or  the  remedy  of  the  Act.  *  *  *  But  this  Act  [of  19031 
does  not  destroy  the  integrity  of  the  locomotive  and  tender.  It 
is  entirely  satisfied  by  requiring  the  automatic  coupler  between 
the  tender  and  the  cai*s  constituting  the  train;  that  is,  to  the 
rear  end  of  the  tender.  And  this  requirement  fulfills  the  pur- 
pose of  the  statute,  which,  we  have  seen,  does  not  regard  the 
strength  of  the  connections  between  the  cars,  even  if  it  may  be  sup- 
posed that  an  automatic  coupler  is  the  stronger,  but  does  regard 
safety  in  making  and  unmaking  the  connections.  *  *  *  It  is 
of  special  significance,  therefore,  that  in  its  order  under  the  Act  of 
Apiil  14,  1910,  which  was  supplemental  of  the  other  Acts,  desig- 
nating the  number,  dimensions,  location  and  manner  of  applica- 
tion of  certain  appliances,  it  [the  Interstate  Commerce  Commis- 
sion] provided  as  follows:  '^ Couplers:  Locomotives  shall  be 
equipped  with  automatic  couplers  at  rear  of  tender  and  front 
of  locomotive."  That  is,  couplers  were  required  where  danger 
might  be  incurred  bv  the  employees. —  McKenna,  Justice,  pp. 
678,  679-680.  [Affirming  the  judgment  of  the  Circuit  Court  of 
Appeals  for  the  3rd  Circuit  in  Pennell  v.  Philadelphia  cfc  B.  Ry. 
Co.,  203  Fed.,  681.] 

4.  The  Acts  require  that  couplers  shall  be  operative  in  an  ordinary 
and  reasonable  manner. 
Burho  V.  Minneapolis  &  St.  L.  By.  Co. ,1^1  N.  W.,  300. 
Supreme  Court  of  Minnesota,  May  9,  1913. 

To  say  that  the  law  has  been  complied  with  when  the  coupler 
can  be  made  to  work  only  after  extraordinary  efforts,  or  sporad- 


COUPLERS.  71 


ically,  or  by  opening  the  knuckle  thereof  with  the  hand,  would 
give  very  little  protection  and  relief  to  employees.     If  a  coupler 
fails  to  work  when  an  honest  and  reasonable  effort  is  made  to 
operate  it,  under  circumstances  and  in  the  manner  it  is  designed 
to  be  operated,  w'e  conclude  the  law  is  not  complied  with. — Holt, 
J.,  p.  302. 
Popplar  V.  Minneapolis,  St.  P.  d^  S.  S.  M.  Ry.  Co.,  141  N.  W.,  798; 
Willett  V.    Illinois  Central  R.    Co.,   142  N.   W.,  883.     See  also 
Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Brown,  229  U.  S.,  317. 
— (a)..  And  repeated  unsuccessful  efforts  to  operate  a  coupler  in  an 
ordinary  and  reasonable  manner  afford  some  evidence  that  it  is 
defective. 
i\ichols  V.  Chesapealce  <&  0.  Ry.  Co.,  195  Fed.,  913;  Montgomery  v. 
Carolina  &  N.  W.  R.  Co.,  80  S.  E.,  83;  Nashville,  C  cfc  St.  L.  Ry. 
Co.  V.  Benry,  164  S.  W.,  310. 

6.  The  Acts  require  that  the  couplers  actually  used  or  attempted 
to  be  used  at  any  given  time  shall  be  operative  of  their  own 
mechanism : 

Johnson  v.  Southern  Pacific  Co.,  196  U.  S.,  1. 
Supreme  Court,  December  19,  1904. 

But  we  think  that  what  the  Act  plainly  forbade  was  the 
use  of  cars  which  could  not  be  coupled  together  automatically 
by  impact,  by  means  of  the  couplers  actually  used  on  the  cars 
to  be  coupled. — Fuller,  Chief  Justice,  p.  16. 

TJ.  S.  y.  Louisville  cfc  N.  R.  Co.,  162  Fed.,  185. 

District  Court,  Southern  District  of  Alabama,  April  9,  1908. 
The  law  forbids  the  use  of  cars  which  could  not  be  coupled 
together  automatically  by  impact  by  means  of  the  couplers 
actually  used  on  the  cars  to  be  coupled,  and  the  object  of  the 
law  is  to  render  it  unnecessary  for  a  person  operating  the  couplers 
to  go  between  the  ends  of  the  cars  to  uncouple  them. —  Toulmin, 
D.  J.,  p.  186. 

TJ.  S.  V.  TUinois  Central  R.  Co.,  177  Fed.,  801 ;  Chicago,  M.  c&  P.  S. 
Ry.  Co.  V.  U.  S.,  196  Fed.,  882;  U.  S.  v.  WaUsh  R.  Co.,  D.  C, 
S.  D.  Illinois,  June  6,  1907,  Humphrey,  D.  J.  [unreported]; 
U.  S.  V.  Chicago,  M.  cfc  P.  S.  Ry.  Co.,  D.  C.,  D.  Montana,  May  2, 
1911,  Dietrich,  D.  J.  [unreported].  See  also  Hohenleitner  v. 
Southern  Pacific  Co.,  177  Fed.,  796;  Philadelphia  <&  R.  Ry.  Co. 
V.  WinUer,  56  Atl.,  112.  But  see  U.  S.  v.  Montpelier  &  W.  B. 
R.  Co.,  175  Fed.,  874. 

— (a).  But  if  a  coupler  is  in  fact  defective,  it  is  not  necessary  that  it 
shall  be  actually  used  or  attempted  to  be  used  in  order  to  con- 
stitute a  violation  of  the  Acts: 
U.  S.  v.  Denver  cfc  R.  G.  R.  Co.,  163  Fed.,  519. 

Circuit  Court  of  Appeals,  8th  Circuit,  August  22,  1908. 

The  criticism  made  of  this  allegation  is  that  it  does  not 
specify  how  far  the  hauling  was  continued,  or  its  purpose,  and  is 
silent  respecting  any  actual  use  of  the  defective  coupler;  but  the 
answer  to  this  is  that  the  allegation  does  sufficiently  show  an 
actual  and  substantial  hauling  in  moving  interstate  traffic  and 


72  SAFETY  APPLIANCE  ACTS. 


that,  this  being  so,  it  is  immaterial  under  the  statute,  how  far 
the  hauling  was  continued  or  whether  there  was  any  actual  use 
of  the  defective  coupler.  — Fa?i  Devanter,  C.  J.,  p.  521. 
Z7.  S.  V.  Northern  Pacific  Ry.  Co.,  D.  C,  W.  D.  Washington,  Dec.  5, 
1913,  Cushman,  D.  J.  [unreported]. 

The  Acts  do  not  contemplate  that  employees  shall  be  required  to 
go  around,  over  or  under  cars  in  order  to  operate  couplers  by 
means  of  the  levers  on  the  opposite  sides  of  adjacent  cars. 
Central  Vermont  By.  Co.  y.  U.  S.,  205  Fed.,  40. 

Circuit  Court  of  Appeals,  1st  Circuit,  May  13,  1913. 

Uncoupling  levers  on  the  adjoining  ends  of  two  cars,  it 
appeared,  are  customarily  located  upon  opposite  sides,  and  to 
get  from  the  operating  end  of  one  of  these  levers  to  the  operating 
end  of  the  other  it  is  necessary  to  go  over,  under,  or  around  the 
train.  *  *  *  The  District  Court  refused  to  rule  that  upon 
the  evidence  the  plaintiff  could  not  recover  the  penalties  demand- 
ed under  the  Act,  or  to  rule  that  in  order  to  recover  them  plain- 
tiff must  prove  it  impossible  to  uncouj)le  each  car  in  question 
from  the  car  to  which  it  was  coupled  Avithout  the  necessity  of  a 
man's  going  between  the  two  cars,  or  to  rule  that  if  it  was  possi- 
ble so  to  uncouple  the  two  cars  the  Act  was  not  violated,  even 
though  one  of  tne  two  coupled  cars  did  not  have  an  uncoupling 
lever  in  working  order.  *  *  *  We  think  the  refusals  and 
rulings  were  right. — Dodge,  C.  J.,  p.  41. 
Donegan  v.  Baltimore  <&  N.  Y.  Ry.  Co.,  165  Fed.,  869. 

Circuit  Court  of  Appeals,  2nd  Circuit,  November  16,  1908. 
His  first  obligation  was  to  use  the  safety  appliance.  He 
attempted  to  use  the  appliance  on  his  side  of  the  car,  but  it  was 
broken.  He  could  only  nave  used  the  appliance  on  the  opposite 
side  of  the  car — provided  it  was  in  worlang  order — by  in  some 
way  going  around  or  across  the  moving  train.  He  could  hardly 
have  accomplished  this  before  reaching  the  west  yard  switch. 
He  attempted  to  obey  his  order  by  uncoupHng  by  hand.  Under 
the  circumstances  it  can  not  be  said  as  a  matter  of  law  that  he 
adopted  a  dangerous  method  of  discharging  his  duty  when  a  com- 
paratively safe  means  was  open  to  him. — Noyes,  C.  J.,  p.  872. 
Nichols  V.  Chesapealce  &  0.  Ry.  Co.,  195  Fed.,  913. 

Circuit  Court  of  Appeals,  6th  Qrcuit,  April  2,  1912. 

It  is  true  that  it  would  have  been  possible  for  him  to  climb 
over  the  train  and  operate  the  lever  on  the  other  side  or  to  refuse 
to  go  between  the  cars  until  the  train  had  stopped;  but  we 
can  not  say  as  a  matter  of  law  that  it  was  his  unquestionable 
duty  to  do  either  one  of  these  things.  [Norfolk  cfc  W.  Ry.  Co.  v. 
Hazelrigg,  184  Fed.,  S2S].—Denison,  C.  J.,  pp.  918-919. 
U.  S.  V.  Denver  <&  R.  G.  R.  Co.,  163  Fed.,  519. 

Circuit  Court  of  Appeals,  8th  Circuit,  August  22,  190S. 

But  it  is  said  that  m  truth  a  coupling  between  such  an  inoper- 
ative coupler  and  an  operative  one  can  be  automatically  effected 
by  impact,  and  an  uncouphng  thereof  can  also  be  effected,  with- 
out the  necessity  of  a  m.an  going  between  the  ends  of  the  cars,  if 
he  happens  to  be  on  that  side  of  the  track  from  which  the  lever  of 


COUPLERS.  73 


the  operative  coupler  can  be  manipulated,  or  if  he  crosses  to  that 
side  by  going  airound,  climbing  over,  or  crawling  under  the  cars. 
That  this  is  so  has  been  shown  in  other  cases  which  have  been 
before  this  court.  [Citing  cases.]  But  passing  the  question 
whether  we  can  here  take  notice  of  the  fact  so  asserted  and  shown, 
we  can  not  assent  to  the  contention  which  is  founded  upon  it, 
namely,  that  an  inoperative  coupler — that  is,  one  which  can  not 
be  properly  manipulated  preparatory  to  effecting  a  coupling  or  an 
uncoupling,  as  the  case  may  be,  without  a  man  going  between  the 
ends  01  the  cars — is  yet  to  be  regarded  as  conforming  to  the  statute, 
because  another  coupler  C£i,pable  of  being  so  manipulated  can  be 
coupled  therewith  and  uncoupled  therefrom,  without  a  man  going 
between  the  cars,  if  he  submits  to  whatever  of  inconvenience  or 
risk  may  be  incident  to  getting  at  the  lever  of  the  operative 
coupler. —  Van  Devanter,  0.  J.,  pp.  520-521. 

V.  8.  V.  Southern  Pacific  Co.,  167  Fed.,  699. 

District  Court,  Northern  District  of  California,  December  4, 1908. 
The  law"  also  means  that  each  car  must  be  equipped  with  an 
uncoupling  lever  on  each  end  thereof,  by  means  of  which  such  car 
can  be  at  all  times  uncoupled  from  another  car  by  a  man  standing 
at  one  end  on  the  side  of  the  car,  and  without  the  reasonable 
necessity  of  going  between  such  car  or  any  other  car,  or  without 
going  around  the  end  of  the  train  in  which  said  car  might  be 
hauled,  or  without  crawling  under  or  over  said  cars,  in  order  to 
reach  the  uncoupling  lever  of  the  adjacent  car. — Be  Haven,  D.  J., 
p.  700. 

U.  S.  v.  CJdcago,  M.  &  St.  P.  By.  Co.,  149  Fed.,  486;  U.  S.  v. 
Central  of  Georgia  By.  Co.,  157  Fed.,  893 :  Norfolk  cfe  W.  B.  Co.,  v. 
U.  S.,  177  Fed.,  623;  NorfoR  &  W.  By.  Co.  v.  Hazelrigg,  184  Fed., 
828;  Chicago,  B.  I.  dc  P.  By.  Co.  v.  Brown,  185  Fed.,  80;  Chicago^ 
B.  cfc  Q.  By.  Co.  V.  U.  S.,  211  Fed.,  12;  St.  Louis,  I.  M.  cfc  S.  By, 
Co.  V.  Yorl,  123  S.  W.,  376;  Popplar  v.  Minneapolis,  St.  P.  cfc  S. 
S.  M.  By.  Co.,  141  N.  W.,  798;  U.  S.  v.  El  Paso  &  S.  W.  B.  Co., 
D.  C,  D.  Arizona,  Jan.  30,  1907,  Doan,  D.  J.  [unreported];  TJ.  S. 
V.  Chesapeake  &  0.  By.  Co.,  D.  C,  S.  D.  West  Virginia,  Dec.  2, 
1908,  Keller,  D.  J.  [unreported].  IJ.  S.  v.  Northern  Pacific  By.  Co., 
D.  C,  W.  D.  Washington,  Dec.  5, 1913,  Cushman,  D.  J.  [unreported]. 
See  also  U.  S.  v.  St.  Louis,  L  M.  dc  S.  By.  Co.,  154  Fed.,  516; 
Grand  Trunk  Western  By.  Co.  v.  Poole,  93  N.  E.,  26;  Pierson  v. 
Chicago  &  N.  W.  By.  Co.,  102  N.  W.,  149;  Brady  v.  Kansas  aty, 
St.  L.  &  C.  B.  Co.,  102  S.  W.,  978;  Johnston  v.  Chicago  Great 
Western  By.  Co.,  164  S.  W.,  260. 

Per  Contra  [to  the  extent  of  defeating  recovery  in  an  action  for  per- 
sonal injury]: 

Gilbert  v.  Burlington  C.  R.  &  N.  Ry.  Co.,  128  Fed.,  529;  Suttle  v.  Choctaw, 
0.  &  G.  R.  Co.,  144  Fed.,  668;  Union  Pacific  R.  Co.  v.  Brady,  161  Fed.,  719; 
Norfolk  &  W.  Ry.  Co.  v.  Hazelrigg  (1st  appeal),  170  Fed.,  551. 

But  see: 


Chicago,  B.  cfc  Q.  By.  Co.  v.  U.  S.,  211  Fed.,  12. 

Circuit  Court  of  Appeals,  8th  Circuit,  November  28,  1913. 
The  argument  of  plaintiff  in  error  in  support  of  this  con- 
tention is  based  mainly  upon  the  decisions  of  this  court  in  Morris 


74  SAFETY  APPLIANCE  ACTS. 


V.  Duluth  S.  S.  &  A.  Ry.  Co.,  108  Fed.,  747;  Gilbert  v.  Burling- 
ton, C.  R.  dc  N.  Ry.  Co.,  128  Fed.,  529;  Suttle  v.  Choctaw,  0.  <& 
G.  R.  Co.,  144  Fed.,  668;  and  Union  Pacific  Ry.  Co.  v.  Brady, 
161  Fed.,  719.  In  those  cases  it  was  held  that  a  switchman 
was  guilty  of  contributory  negligence  in  going  between  cars  to 
uncouple  them  if  the  lever  upon  either  car  was  operative.  The 
opinions  contain  no  suggestion,  however,  that  the  company  in 
suffering  the  coupling  appliance  upon  one  car  to  be  inoperative 
was  not  guilty  of  a  violation  of  the  Safety  Appliance  Act.  On 
the  contrary,  all  those  decisions  proceed  upon  the  ground  that 
the  company  was  guilty  of  such  a  violation  of  the  law,  but  held 
that  the  plaintiff  was  guilty  of  contributory  negligence,  which 
defeated  his  right  of  recovery,  because,  notwithstanding  the 
company's  breach  of  duty,  there  was  a  safe  way  in  which  the 
employee  could  have  uncoupled  the  cars,  and  he  was  bound  to 
choose  that  way  rather  than  the  dangerous  method  of  going 
between  the  cars. — Amidon,  D.  J.,  p.  14. 
Norfolk  c&  W.  Ry.  Co.  v.  Hazelrigg  (2nd  appeal),  184  Fed..  828. 

7.  The  preparation  of  a  coupler  for  impact  is  a  part  of  the  coupling 

operation  within  the  purview  of  the  Acts : 
Chicago,  M.  cfc  St.  P.  Ry.  Co.,  v.  Voelker,  129  Fed.,  522. 
Circuit  Court  of  Appeals,  8th  Circuit,  March  26,  1904. 

The  preparation  of  the  coupler  and  the  impact  are  not  iso- 
lated acts,  but  connected  and  indispensable  parts  of  the  larger 
act  which  is  regulated  by  these  statutes  and  the  performance  of 
which  is  intended  to  be  relieved  of  unnecessary  risk  and  danger. — 
Van  Devanter,  C.  J.,  p.  527. 
U.  S.  V.  Nevada  County  N.  G.  R.  Co.,  167  Fed.,  695. 

District  Court,  Northern  District  of  California,  Nov.  28,  1908. 
The  jury  is  instructed  that  if  it  believes  from  a  preponder- 
ance of  the  evidence  that  the  defendant  hauled  the  car,  as  alleged 
in  the  first  count  of  plaintiff's  petition,  when  the  coupling  and 
uncoupling  apparatus  on  either  end  of  said  car  was  so  constructed 
that  in  order  to  open  the  knuckle  w^hen  preparing  the  coupler 
for  use  it  was  reasonably  necessary  for  a  man  to  place  part  of  his 
body,  his  arm,  or  his  leg  in  a  hazardous  or  danojerous  position, 
then  its  verdict  should  be  for  the  Government. — De  Haven,  D.  J., 
p.  696. 
Burho  V.  Minneapdis  &  St.  L.  Ry.  Co.,  141  N.  W.,  300;  Grand 
Trunk  Western  Ry.  Co.  v  Poole,  93  N.  E.,  26. 

— (a).  But  the  coupling  of  air  hose  between  cars  is  no  part  of  such 
coupling  operation. 
Yost  v.  Union  Pacific  R.  Co.,  149  S.  W.,  577  [and  cases  there  cited]. 
But  see  Johnson  v.  Great  Northern  Ry.  Co.,  178  Fed..  643;  U.  S. 
V.  Boston  ch  M.  R.  Co.,  168  Fed.,  148. 

8.  The  Acts  prohibit  the  use  of  a  coupler  operative  only  by  means  of 

a  chain  connecting  with  the  platform  hand-rail. 
Z7.  8.  V.  Toledo  Terminal  R.  Co.  [unreported]. 

District  Court,  Northern  District  of  Ohio,  June  15,  1909. 
The  only  defense  that  is  asserted  in  regard  to  that  car  is  that 
for  the  convenience  of  the  men  they  had  a  chain  connecting  with 


COUPLERS.  75 


the  hand-rail  by  which  the  apparatus  might  be  uncoupled  by 
using  that  chain.     I  do  not  think  that  complies  with  the  law,  and 
hence  that  is  no  defense  in  the  case. — Cochran,  D.  J. 
U.  S.  V.  Southern  Pacific  Co.  [unreported]. 

District  Court,  District  of  Nevada,  November  24,  1909. 

You  are  also  instructed  that  a  caboose  car  which  has  for  the 
convenience  of  the  employees  a  chain  running  from  the  coupler 
to  the  handrail,  b}'  means  of  which  the  car  may  be  uncoupled 
by  a  man  jumping  upon  the  platform  of  the  caboose  and  pulling 
the  chain,  is  not  equipped  in  compliance  with  section  2  of  the 
Safety  Appliance  Act.  This  is  true  provided  this  is  the  only 
device  for  uncoupling  the  cars,  and  the  car  is  used  in  interstate 
traffic. — Farrington,  D.  J . 

9.  The  Acts  prohibit  the  use  of  couplers  which  will  not  couple  auto- 
matically by  impact  when  cars  are  brought  together : 
Johnson  V.  Southern  Pacific  Co.,  196  U.  S.,  1. 
Supreme  Court,  December  19,  1904. 

But  we  think  that  what  the  Act  plainly  forbade  was  the 
use  of  cars  which  could  not  be  coupled  together  automatically 
by  impact  by  means  of  the  couplers  actually  used  on  the  cars 
to  be  coupled. — Fuller,  Chief  Justice,  p.  16. 
TJ.  S.  V.  Southern  Ry.  Co.,  135  Fed.,  122;  U.  S.  v.  Northern 
Pacific  Terminal  Co.,  144  Fed.,  861;  V.  S.  v.  Chicago,  M.  & 
St.  P.  Ry.  Co.,  149  Fed.,  486;  V.  S.  v.  Philadelphia  dc  R.  Ry.  Co., 
160  Fed.,  696;  TJ.  S.  v.  Louisville  &  N.  R.  Co.,  162  Fed.,  185; 
TJ.  S.  V.  Nevada  County  N.  G.  R.  Co.,  167  Fed.,  695;  TJ.  S.  v. 
AtcUson,  T.  &  S.  F.  Ry.  Co.,  167  Fed.,  696;  TJ.  S.  v.  Southern 
Ry.  Co.,  170  Fed.,  1014:  TJ.  S.  v.  Rio  Grande  Western  Ry.  Co., 
174  Fed.,  399;  WinJcler  v.  Philadelphia  dc  R.  Ry.  Co.,  53  AtL, 
90;  Philadelphia  cfc  R.  Ry.  Co.  v.  WinJcler,  56  AtL,  112;  Mont- 
gomery V.  Carolina  &  N.  W.  R.  Co.,  80  S.  E.,  83;  TJ.  S.  v. 
Philadelphia  d^  R.  Ry.  Co.,  D.  C,  E.  D.  Pennsvlvania,  Mar. 
17,  1908,  McPherson,  D.  J.  [unreported];  TJ.  S.  v.  Pennsyl- 
vania R.  Co.,  D.  C,  E.  D.  Pennsylvania,  IVIar.  18,  1908,  ]\ic- 
Pherson,  D.  J.  [unreported];  TJ.  S.  v.  Baltimore  dc  0.  R.  Co., 
D.  C,  S.  D.  Ohio,  June  10,  1909,  Sater,  D.  J.  [unreported]; 
TJ.  S.  V.  Toledo  Terminal  R.  Co.,  D.  C,  N.  D.  Ohio,  June  15, 
1909,  Cochran,  D.  J.  [unreported];  V.  S.  v.  Southern  Pacific  Co,, 
D.  C,  D.  Nevada,  Nov.  24,  1909,  Farrington,  D.  J.  [unreported]. ' 

Per  Contra: 

Johnson  v.  Southern  Pacijic  Co.,  117  Fed.,  462. 

— (a).  By  reason  of  a  clevis  pin  having  been  removed; 

U.  S.  V.  Atchison,  T.  c£'  S.  F.  Ry.  Co.  [unreported]. 

District  Court,  Fourth  District  of  Arizona,  July  17,  1908. 
It  is  a  violation  of  law  rendering  the  common  carrier  liable 
under  the  statute  to  use  a  car  with  the  clevis  pin  of  the  chain  con- 
necting the  lock  block  to  the  uncoupling  lever  broken  or  removed 
for  any  cause,  when  the  effect  would  be  to  render  the  uncoupling 
mechanism  inoperative  without  the  necessity  of  a  man  going 
between  the  ends  of  the  cars. — Sloan,  D.  J. 


76  SAFETY  APPLIANCE  ACTS. 


— (i).  And   the   fact   that   a   pin  is  missing  from  a  coupler  at  the 
termination  of  a  given  trip  affords  some  evidence  that  the  coupler 
was  defective  at  the  commencement  of  the  journey: 
TJ.  S.  V.  Indiana  Harbor  R.  Co.,  157  Fed.,  565. 

District  Court,  Northern  District  of  Illinois,  November  20, 1906" 
The  fact  that  the  pin  was  missing  at  the  end  of  the  journey 
is  strongly  indicative  that  the  defect  existed  at  the  point  of 
origin — that  is  to  say,  that  the  pin  either  was  not  then  present  or 
was  so  badly  worn  or  loosened  that  proper  inspection  would  have 
disclosed  the  fact. — Landis,  D.  J.',  p.  566. 

Per  Contra: 

U.  S.  V.  Illinois  Central  R.  Co.,  156  Fed.,  182. 

District  Court,  Western  District  of  Kentucky,  November  1,  1907. 

The  presumption  of  innocence  will  leave  no  room  for  the  inference  that  the 
cars  were  not  properly  equipped  when  that  journey  was  begun,  especially  as  no 
intelligent  person  can  shut  his  eyes  to  the  fact  that  the  rapid  motion,  rough  jos- 
tling, and  jolting  of  the  trains  and  their  immense  weight  may  at  some  time  result 
m  injury  to  such  equipment.  There  can  not  be  much  nicety  in  the  movements 
of  freight  trains. — Evans,  D.  J.,  p.  187. 

— (b).  By  reason  of  being  worn  out: 

VoeXker  v.  Chicago,  M.  &  St  P.  By.  Co.,  116  Fed.,  867. 

Circuit  Cornet,  Northern  District  of  Iowa,  June  16,  1902. 

If  a  railway  uses  in  its  business  cars  which  do  not  conform 
fco  the  statutory  requirements,  either  because  they  never  were 
equipped  with  automatic  couplers,  or  because  the  company, 
through  negligence,  has  permitted  the  couplers  originally  suffi- 
cient to  become  worn  out  and  inoperative,  then  the  company  is 
certainly  m)t  performing  the  duty  and  obligation  imposed  upon 
it  by  the  statute,  and  is  clearly,  therefore,  chargeable  with  negli- 
gence in  thus  using  an  improperly  ec|uipped  car;  and  the  com- 
pany is  bound  to  know  that  if  it  caUs  upon  one  of  its  employees 
to  make  a  coupling  with  a  coupler  so  defective  and  inoperative 
that  it  will  not  couple  by  impact,  and  that  to  make  the  coupling 
the  emplo3^ee  must  subject -himself  to  all  the  risks  and  dangers 
that  inhered  in  the  old  and  dangerous  link-and-pin  method  of 
coupling,  it  is  subjecting  such  employee  to  the  very  risk  and 
danger  which  it  is  the  purpose  of  the  statute  to  protect  him 
against,  so  far  as  that  is  Treasonably  possible. — SJiiras,  D.  J ., 
pp.  874-875. 

TJ.  S.  V.  Illinois  Central  R.  Co.,  177  Fed.,  801.  [citing /S^.  Louis  <& 
S.  F.  R.  Co.  V.  Dellc,  158  Fed.,  931:  U.  S.  v.  Illinois  Central  R. 
Co.  170Fed., 542 ;  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Voellcer,  129  Fed., 
522.]  But  see  Morris  v.  St.  Louis  S.  W.  Ry.  Co.  of  Texas,  158  S. 
W.,  1055. 

— (c) .  By  reason  of  an  uncoupling  chain  being  kinked  in  the  coupler 
head: 

U.  S.  Y,  Denver  <&  R.  G.  R.  Co.,  163  Fed.,  519. 

Circuit  Court  of  Appeals,  8th  Circuit,  August  22,  1908. 

This  allegation  could  be  improved  in  point  of  directness,  but 
it  was  evidently  intended  to  mean,  and  we  think  it  does  mean, 
that  the  coupler  on  the  ''B"  end  of  the  car  was  out  of  repair  in 


COUPLEES.  ,  7.7 


that  the  uncoupling  chain  was  Idnked,  and  that,  m  consequence; 
that  coupler  was  moperative  in  that  it  would  not  couple  auto- 
matically by  impact,  and  could  not  be  uncoupled  without  the 
necessity  of  a  man  going  between  the  ends  of  the  cars.  If  that 
was  so,  one  of  the  couplers  with  which  the  car  was  equipped  did 
not  meet  the  requii-ements  of  the  statute. —  Van  Devanter,  C.  J., 
p.  520. 
V.S.Y.  Southern  Paci-fic  Co.,  167  Fed.,  699. 

DistrictCourt,  NorthernDistrict  of  California,  December  4, 1908. 
If  this  car  left  Truckee  while  the  chain  was  so  ''kinked,"  and 
while  in  this  condition  the  coupler  was  inoperative,  requiring  the 
reasonable  necessity  of  a  man  to  go  between  the  cars  to  couple  or 
uncouple  them,  3'our  verdict  should  be  for  the  Government. — 
Be  Haven,  D.  J.,  p.  702. 

V.  S.  V.  Baltimore  &  0.  R.  Co.  [unreported]. 

District  C  ourt.  District  of  Indiana,  December  13,  1910. 

The  Government's  witness  says  that  he  saw  that  chain 
kmked ;  that  he  undertook  to  manipulate  that  coupler  and  found 
it  was  impossible  because  of  the  kmk.  On  the  other  hand,  one 
witness  for  the  defendant,  as  I  recall,  testified  that  the  chain  was 
too  long,  and  it  did  kmk,  but  that  he  succeeded  in  puUmg  it  out. 
Now,  it  is  not  difficult  for  a  person  who  is  used  to- weighing 
evidence  to  determnie  where  the  truth  lies  there,  and  you  do  not 
have  to  impute  perjury  to  anybody.  The  witnesses  for  the  rail- 
road themselves  testified  that  the  chain  kinked  because  it  was  too 
long,  which,  to  my  mind,  is  evidence  sufficient  to  sustain  the  ver- 
dict on  that  count — to  sustain  a  finding  that  the  coupling  was 
defective,  and  was  not  such  a  coupling  as  would  uncouple  by  this 
appliance  without  the  necessity  of  a  man  going  in  between  the 
cars. — Anderson,  D.  J. 

-(d).  By  reason  of  the  curvature  of  the  track  on  which  the  cars  in 

question  are  attempted  to  be  coupled : 
HoTienleitner  v.  Southern  Pacific  Co.,  177  Fed.,  796. 
Circuit  Court,  District  of  Oiegon,  March  7,  1910. 

There  is  no  charge  in  the  complaint  that  the  cars  were  not 

Erovided  with  couplers  which  would  couple  by  impact  when 
rough t  together,  but  the  averment  is  that  the  lead  track  in  the 
yards,  where  the  plaintiff's  intestate  was  at  work  at  the  time  of 
his  death,  had  a  curve  of  about  20°,  so  that  when  the  couplers 
in  use  on  the  cars  by  which  he  was  killed  met  they  passed  by 
each  other  and  would  not  couple  without  a  person  going  between 
the  cars  to  adjust  them,  and  that  while  the  deceased  was  between 
the  cars  for  that  purpose  he  was  struck  and  killed.  *  *  * 
The  cars  must  not  only  be  provided  with  couplers,  but  the 
couplers  must  be  such  that  when  used  they  will  couple  together 
automatically  If  the  cars  hauled  or  used  by  a  carrier  engaged 
in  such  commerce  will  not  so  couple,  the  law  is  violated,  whether 
it  is  due  to  the  character  of  the  car,  the  kind  of  equipment  used, 
or,  in  my  opinion,  the  manner  in  which  tracks  employees  are 
required  to  use  in  coupling  or  uncoupling  cars  or  making  up 
trains  are  located  or  built.     The  ultimate  end  sought  by  the 


78  SAFETY  APPLIANCE  ACTS. 


law  is  the  coupling  and  uncoupling  of  cars  used  in  interstate 
traffic  without  the  necessity  of  going  between  them.  This  is 
the  test  of  the  compliance  with  it.  As  repeatedly  pointed  out 
by  the  courts,  especially  the  Supreme  Court  in  the  Johnson  Case 
[196  U.  S.,  1],  the  design  is  to  prevent  the  necessity  of  railroad 
employees  going  between  cars  in  order  to  make  a  coupling,  and 
thus  protect  their  lives  and  limbs.  The  point  to  be  accom- 
plished by  the  law  is  that  emplo3'ees  of  railroad  companies 
engaged  in  interstate  commerce  shall  not  be  required  to  go  be- 
tween the  cars  for  the  purpose  of  coupling  or  uncoupling  them, 
and  this  would  be  circumvented  if  the  companies  are  permitted 
to  so  construct  and  maintain  their  tracks  in  3^ards  or  depot 
grounds,  or  other  places  where  employees  are  required,  in  the 
course  of  their  employment,  to  couple  or  uncouple  cars,  in  such 
a  condition  that  the  cars  used  by  them  will  not  couple  automati- 
cally with  the  equipment  provided. — Bean,  D.  J.,  pp.  797-798. 

Willett  V.  Illinois  Central  R.  Co.,  142  N.  W.,  883. 
Supreme  C  ourt  of  Minnesota,  July  25,  1913. 

The  curve  in  track  No.  4,  as  shown  by  the  plat  introduced 
in  evidence  by  defendant,  is  what  is  termed  a  "ten  degree 
curve,"  and  graduall}-  changes  to  a  straight  line.  The  evidence 
does  not  show  very  clearly  how  much  the  track  curved  where 
the  coupling  was  attempted,  but  there  was  some  curve  at  that 
place.  Plaintiff  testified  that  he  had  made  couplings  at  the 
same  place  daily  for  a  year  and  half  preceding  the  accident, 
and  that  the  couplings  never  before  failed  to  make  automatically. 

In  view  of  this  testimony,  and  of  the  testimony  as  to  the 
extent  to  which  the  drawbars  in  question  could  be  crowded  out 
of  line,  and  of  the  fact  that,  at  the  time  of  the  accident,  they 
were  out  of  line  to  such  an  extent  that  the  coupling  would  not 
make  on  impact,  the  court  can  not  hold  as  a  matter  of  law  that 
the  coupling  was  attempted  at  an  improper  place,  or  that  the 
couplers  ware  not  defective  within  the  meaning  of  the  Safety 
Appliance  Act.  These  were  questions  for  the  jury  and  were 
properly  submitted  to  the  jury. —  Taylor,  CommW.,  p.  884. 

(e).  By  reason  of  the  cars  to  which  they  are  attached  being  so 
laden  with  lumber  or  other  material  projecting  beyond  their 
ends  as  to  preclude  the  automatic  operation  of  such  couplers: 

V.  S.  V.  Illinois  Central  R.  Co.,  177  Fed.,  801. 

Circuit  Court  of  Appeals,  6th  Circuit,  April  5,  1910. 

We  can  see  no  substantial  difference  in  principle,  so  far  as 
concerns  the  question  here  involved,  between  the  case  of  a  coupler 
temporarily  inoperative  by  reason  of  being  out  of  repair  and  one 
rendered  equally  inoperative  because  of  the  loading  of  the  car  in 
such  way  that  the  act  of  uncoupling  could  not  be  accomplished 
without  the  necessity  of  a  man  going  between  the  cars.  The 
latter  case,  which  is  presented  here,  is  equally  within  the  mischief 
which  the  statute  is  designed  to  prevent.     *     *     * 

We  are  not  impressed  by  the  contention  of  defendant  that 
the  facts  stated  in  the  declaration  do  not  make  it  appear  that  it 
was  necessary  to  go  between  the  cars  to  effect  an  uncoupling, 
from  the  fact  that  such  act  could  be  accomplished  by  getting  on 


COUPLERS.  79 


top  of  the  car  and  removing  the  kimber  from  over  the  lever.  So 
long  as  the  lumber  was  so  loaded  ^'as  to  project  out  over  the 
uncoupling  lever"  and  so  as  to  '' prevent  the  operation  of  the 
uncoupling  lever  *  *  *  thus  necessitating  a  man  or  men 
going  between  the  ends  of  said  car  *  *  *  and  the  car  adja- 
cent to  couple  or  uncouple  them/'  the  automatic  apparatus  was 
wholly  inoperative,  and  the  situation  during  the  existence  of  that 
state  of  facts  was  as  much  fraught  with  danger  to  the  employee, 
and  as  much  within  the  mischief  the  statute  was  intended  to  pre- 
vent, as  if  the  car  were  not  equipped  with  automatic  devices. — ■ 
Knappen,  0.  J.,  p.  804. 

(f).  The  Acts  prohibit  the  use  of  a  car  on  which  a  coupler  is  inop- 
erative even  though  the  defect  may  be  so  obvious  that  no  reason- 
ably prudent  employee  would  attempt  to  use  such  coupler. 

Chicago,  M.  &  P.  S.  Ry.  Co.  v.  U.  S.,  196  Fed.,  882. 
Circuit  Court  of  Appeals,  9th  Circuit,  May  6,  1912, 

It  may  be  true  that  no  reasonably  prudont  railroad  employee 
would  have  attempted  to  couple  to  the  front  end  of  the  loco- 
motive with  knowledge  of  its  condition,  but  that  fact  does* not 
avoid  the  violation  of  the  statute.  The  defective  drawbar 
remained  a  danger  and  a  menace,  and  when  all  is  said,  the  fact 
remains  that  its  use  in  that  condition  was  prohibited.  [Citing 
U.  S.  V.  Denver  cfc  R.  G.  R.  Co.,  163  Fed,,  519,  and  other  cases.] 
We  are  referred  to  Wabash  R.  Co.  v.  U.  S.,  172  Fed.,  864, 
as  authority  for  the  proposition  that  a  locomotive  engine 
used  in  interstate  commerce  need  not  necessarily  have  an 
automatic  coupler  at  both  ends.  The  court  in  that  case 
held  there  was  no  violation  of  the  Safety  Appliance  Act  in 
the  use  of  an  engine  which  had  originally  been  equipped 
with  automatic  couplers  at  the  A-end  and  the  B-end,  but  there- 
after the  lock-chain  had  been  disconnected  and  the  knuckle 
removed  from  the  coupler  at  the  B-end,  leaving  that  coupler  in 
such  condition  that  no  other  car  could  be  coupled  thereto  or 
uncoupled  therefrom,  and  where  it  appeared  that  the  coupler  at 
the  A-end  was  the  only  one  used  at  the  time  in  question  in  moving 
interstate  traffic.  While  with  all  respect  for  that  court  we  are 
inclined  to  doubt  the  correctness  of  that  ruling,  we  find  it  suffi- 
cient for  the  present  case  to  point  to  the  difference  between  that 
case  and  this.  There  the  coupler  had  been  disconnected  and  the 
knuckle  taken  out  ''in  pursuance  of  a  purpose  that  it  should  not 
be  used."  In  the  case  at  bar  the  plaintiff  in  error  was  found 
using  a  defective  coupler  at  one  end  of  the  engine,  and  thereafter 
having  reversed  the  engine,  was  found  using  the  other  end  for 
the  purpose  of  transferring  cars.  Nothing  was  shown  indicative 
of  a  purpose  to  refrain  from  using  both  ends  of  the  locomotive 
for  coupling,  and  no  portion  of  the  defective  coupling  device  was 
removed.  That  device  remained  as  it  was  before,  a  trap  to  the 
unwary. — Gilbert,  C.  J.,  pp.  884-885.  [Affirming  the  judgment  of 
the  District'  Court  for  the  District  of  Montana,  and  cited  with 
apparent  approval  by  the  Supreme  Court  in  Southern  Ry.  Co.  y. 
Crockett,  234  U.  S.,  725.] 


80  SAFETY  APPLIANCE  ACTS. 


10.  The  use  of  a  car  on  which  a  coupler  is  inoperative  is  the  same 
in  legal  effect  as  if  such  car  had  never  been  equipped  with  auto- 
matic couplers. 

TaggartY.  Republic  Iron  db  Steel  Co.,  141  Fed.,  910. 

Circuit  Court  of  Appeals,  6th  Circuit,  November  13,  1905. 
To  the  suggestion  that  the  presence  of  the  automatic  coup- 
lers changed  the  situation,  it  may  be  said  that  such  a  coupler  to 
be  effective  must  work.  *  *  *  But,  however  that  may  be,  a 
car  with  an  automatic  coupler  that  v^dll  not  work  is  to  all  intents 
and  purposes  a  car  without  an  automatic  coupler,  and  the  switch- 
man must  handle  it  in  the  old  way,  dangerous  though  that  may 
be. — Richards,  C.  J.,  p.  912. 
Elmore  v.  Seaboard  Air  Line  Ry.  Co.,  41  S.  E.,  786. 

Supreme  Court  of  North  Carolina,  June  13,  1902. 
If  the  automatic  coupler  was  out  of  repair  for  a  length  of 
time  reasonably  sufficient  to  have  it  repaired,  and  this  was  not 
done,  it  was  the  same  thing  as  the  failure  to  have  the  automatic 
coupler  on  that  car. —  Clark,,  J,  p.  787. 
Montgomery  v.  Carolina  <&  N.  W.  R.  Co.,  80  S.  E.,  83;  Luken  v.  Lake 
Shore  cfe  M.  S.  Ry  Co.,  154  lU.  App.,  550. 

Per  Contra: 

Kansas  City,  M.  &  B.  R.  Co.  v.  Flippo,  35  So.,  457;  U.  S.  v.  Toledo  Terminal  R. 
Co.,  D.  C.,  N.  D.  Ohio,  June  15,  1909,  Cochran,  D.  J.  [unreported]. 

11.  A  carrier  is  liable  under  the  Acts  for  the  failure  of  an  employee 
to  connect  an  uncoupling  chain  as  well  for  allowing  such  a 
chain  to  become  disconnected. 

U.  S.  V.  Great  Northern  Ry.  Co.,  150  Fed.,  229. 

District  Court,  Eastern  District  of  Washington,  Nov.  28, 1906. 
If  a  common  carrier  can  excuse  itself  because  a  particular 
equipment  is  out  of  repair,  without  even  explaining  why,  then 
it  could  equip  all  of  its  cars,  leaving  the  equipment  disconnected, 
which  would  require  brakemen  to  enter  between  them  for  the 
purpose  of  couplmg  the  same,  thereby  defeating  the  purposes  of 
the  law  altogether.  *  *  *  In  such  a  case,  until  the  chain  is 
connected,  a  car  is  not  equipped  with  couplers  '^  which  can  be 
uncoupled  without  the  necessity  of  men  going  between  the  ends 
of  the  cars."  *  *  *  There  are  two  phases  of  the  case,  there- 
fore, which  are  conclusive  against  the  defendant:  First,  indulging 
the  theory  that  apparatus,  the  working  parts  of  which  were  in 
perfect  order,  and  which  only  needed  to  be  connected  to  make  the 
appliance  available,  was  out  of  repair  because  not  connected,  the 
defendant  fails,  because  it  was  its  duty  in  this  regard  to  keep  the 
car  in  repair;  second,  if  the  chain  never  had  been  connected,  then 
the  defendant  never  did  equip  the  car  in  the  manner  provided  by 
law,  and  in  the  absence  of  explanation,  it  must  be  presumed  that 
this  is  the  fact.—  Whitson,  D.  J.,  pp.  230-231. 

JJ.  S.  V.  Atchison,  T.  cfe  S.  F.  Ry.  Co.,  167  Fed.,  696. 

DistrictCourt,NorthernDistrictof  California,  December  1, 1908. 

You  are  instructed  that  section  2  of  the  Safety  Appliance 

Act  imposes  upon  the  defendant  an  unqualified  duty  to  equip 


COUPLERS.  81 


its  cars  with  couplers  coupling  automatically  by  impact,  and 
which  can  be  uncoupled  without  the  necessity  of  men  going 
between  the  ends  of  the  cars;  and  if  the  defendant  hauled  over 
its  lines  of  railroad  any  cars  which  could  not  be  so  operated, 
either  by  reason  of  being  improperly  equipped  or  by  reason  of 
the  original  equipment  being  out  of  order  or  disconnected,  or 
otherwise  inoperative,  your  verdict  should  be  for  the  Govern- 
ment as  to  each  and  every  car  so  hauled. — De  Haven,  D.  J., 
p.  697. 
U.  S.  V.  Terminal  R.  AssWt.  of  St.  Louis  [unreported]. 

District  Court,  Eastern  District  of  Missouri,  June  3,  1908. 
There  is  no  dispute,  therefore,  that  the  chains  were  un- 
coupled; and  it  makes  no  difference  whether  the  chains  were 
broken  in  fact  in  the  links  of  the  chain  or  were  merely  discon- 
nected. It  was  the  duty  of  the  railroad  company  and  its  em- 
ployees to  see  that  those  chains  were  in  condition  so  that  they 
could  be  used  as  this  Act  contemplates.  They  should  be  in 
such  condition  that  they  could  be  used  without  necessitating  a 
man  going  in  between  the  cars.  I  fail  to  find  any  difference, 
under  the  provisions  of  this  Act,  between  a  chain  that  happens 
to  be  broken  in  a  link  and  a  chain  that  is  uncoupled  and  inopera- 
tive.— Dyer,  D.  J. 

Per  Contra : 

U.  S.  V.  Illinois  Central  R.  Co.,  156  Fed..  182. 

12.  The  Acts,  while  permitting  such   equipment,  do  not  require  that 
cars  shall  be  equipped  with  double  levers: 
U.  S.  V.  PhiladelpUa  cfc  R.  Ry.  Co.,  160  Fed.,  696. 

District  Court,  Eastern  District  of  Pa.,  March  17,  1908. 
In  some  instances  the  lever  comes  entirely  across  the  ends 
of  the  car,  so  that  at  whichever  side  the  brakeman  or  employee 
happens  to  be  standing  he  may  perform  whatever  operation  is 
necessary  for  the  purpose  of  uncoupling.  On  some  of  the  cars, 
perhaps  the  most  of  them,  as  the  testimop.y  would  seem  to  indi- 
cate, I  believe  it  is  only  upon  one  side,  and  then,  of  course,  they 
can  only  be  used  from  that  side,  but  nevertheless  they  can  be 
so  used.  That  is  the  provision  of  the  statute. —  McPJierson,  D.  J., 
p.  698. 
U.  S.  V.  Pennsylvania  R.  Co.  [unreported]. 

District  Court,  Eastern  District  of  Pa.,  March  18,  1908. 

That  [uncoupling]  is  done  necessarily  through  the  use  of  a 
lever,  sometimes  of  a  lever  that  runs  across  the  entire  end,  and 
sometimes  of  a  lever  that  runs  only  halfway  across,  and  is,  as 
has  been  testified  to  you,  always  upon  the  left-hand  side  of  the 
car  as  one  faces  it.  Either  lever  complies  with  the  provision 
of  the  statute. —  MrPTierson,  D.  J. 
Norfollc  cfc  W.  Ry.  Co.  v.  U.  S.,  177  Fed.,  623. 
.^0611—15 6 


82  SAFETY  APPLIANCE  ACTS. 


—  (a).  But  if  double  levers  are  provided,  the  Acts  require  that  they 
shall  be  operative  from  either  side  of  the  cars  to  which  they  are 
attached. 
Norfolk  &  F.  Ry.  Co.  v.  V.  8.,  177  Fed.,  623. 

Circuit  Court  of  Appeals,  4th  Circuit,  March  4,  1910. 

On  the  other  hand,  there  is  no  restriction  upon  the  placing 
of  two  such  levers,  one  on  each  side,  on  the  ejid  of  any  or  all  its 
cars,  if  the  companies  desire  or  deem  it  conducive  of  more  effec- 
tive operation  of  the  coupling  automatically  by  impact  without 
the  necessity  of  men  going  between  the  ends  of  the  cai-s.  But 
while  this  is  true,  these  levers,  whether  one  or  more,  become 
parts  of  the  coupling  device  itself,  and  we  think  a  fair  construc- 
tion of  the  statute  requires  us  to  hold  that  the  device  itself  must 
be  in  such  repair  as  to  be  capable  of  operation,  and  if  the  levers 
furnished  to  operate  it,  whether  one  or  two  at  the  end  of  the 
car,  should,  as  such  parts  of  it,  be  kept  in  cojidition  to  operate 
it;  that,  if  there  be  two,  one  on  each  side  of  the  end  of  a  car, 
and  one  be  maintaiiied  in  a  condition  capable  of  operation  and 
the  other  not,  the  latter  is  calculated  only  to  deceive  the  em- 
ployee and  under  some  conditions  perhaps  create  a  necessity,. 
in  other  conditions  at  least  a  temptation,  to  be  negligejit  and 
step  between  the  cars  to  uncouple  them  by  hand.  The  defective 
lever  has  no  business  there  and  should  be  either  made  operative 
or  taken  away,  as  it  renders,  in  the  true  sense  of  the  statute, 
the  coupling  device  of  which  it  is  a  part,  defective. — Dayton, 
D.  J.,  p.  627. 

13.  The  operation  of  automatic  couplers  is  a  proper  subject  for  expert 

testimony:     See  Part  V,  Item  8  p.  209,  post 

— (a).  The  exhibition  of  model  couplers  to  the  jury,  merely  for  the  pur- 
pose of  illustrating  particular  defects,  is  permissible.  See  Part 
V,  Item  8-(a),  p.  210,  post. 

14.  Congress,  in  drafting  the  Acts,  took  cognizance  of  the  mechanical 

difficulties  incident  to  the  interchange  of  couplers. 

Johnson  v.  Southern  Pacific  Co.,  196  U.  S.,  1. 
Supreme  Court,  December  19,  1904. 

The  diUgence  of  counsel  has  called  our  attention  to  changes 
made  in  the  bill  in  the  course  of  its  passage,  and  to  the  debates  in 
the  Senate  on  the  report  of  its  committee,  24  Cong.  Bee,  pt.  2, 
pp.  1246,  1273,  et  seq.  These  demonstrate  that  the  difhculty 
as  to  interchange  ability  was  fully  in  the  mind  of  Congress  and 
was  assumed  to  be  met  by  the  language  which  was  used. — 
Fuller,  Chief  Justice,  p.  20. 
16.  The  use  by  a  railroad  company  of  a  switch  engine  having  no 
uncoupling  levers  does  not  constitute  a  violation  of  the  Acts 
unless  it  is  shown  that  such  levers  are  necessary  to  enable  the 
engine  to  be  coupled  automatically  by  impact  and  to  be  un- 
coupled without  the  necessity  of  men  going  between  such  engine 
and  the  vehicle  from  which  it  is  to  be  uncoupled. 
U.  S.  V.  Montpelier  &  F.  H.  R.  Co.,  lib  Fed.,  874. 


GRAB  IRONS  OR  HANDHOLDS.  83 


F.  GRAB  IRONS  OR  HANDHOLDS. 

1.  Provisions  of  the  Law: 

That  from  and  after  the  first  day  of  July,  eighteen  hundred  and 
ninety-five,  until  otherwise  ordered  by  the  Interstate  Commerce 
Commission,  it  shall  be  unlawful  for  any  railroad  company  to  use  any 
car  in  interstate  commerce  that  is  not  provided  with  secure  grab  irons 
or  handholds  in  the  ends  and  sides  of  each  car  for  greater  security  to 
men  in  coupling  and  uncoupling  cars. — Sec.  4,  Act  March  2,  1893  [27  Stat. 
at  L.,  531]. 

That  on  and  after  July  first,  nineteen  hundred  and  eleven,  it  shall 
be  unlawful  for  any  common  carrier  subject  to  the  provisions  of  this 
Act  to  haul,  or  permit  to  be  hauled  or  used  on  its  line,  any  car  subject 
to  the  provisions  of  this  Act  not  equipped  with  appliances  provided 
for  in  this  Act,  to  wit:  All  cars  must  be  equipped  with  secure  sill 
steps  and  efficient  hand  brakes;  all  cars  requiring  secure  ladders  and 
secure  running  boards  shall  be  equipped  with  such  ladders  and  running 
boards,  and  all  cars  having  ladders  shall  also  be  equipped  with  secure 
handholds  or  grab  irons  on  their  roofs  at  the  tops  of  such  ladders: 
Provided,  That  in  the  loading  and  hauling  of  long  commodities,  re- 
quiring more  than  one  car,  the  hand  brakes  may  be  omitted  on  all 
save  one  of  the  cars  while  they  are  thus  combined  for  such  purpose. — 
Sec.  2,  Act  April  U,  1910  [36  Stat,  at  L.,  298^. 

2.  The  purpose  of  handholds  is  to  secure  the  safety  of  men  engaged 

in  coupling  and  uncoupling  cars. 
Dawson  v.  Chicago,  R.  I.  &  P.  Ry.  Co.,  114  Fed.,  870. 

Circuit  Court  of  Appeals,  8th  Circuit,  March  31,  1902. 

The  purpose  of  requiring  grip  irons  or  handholds  to  be 
placed  at  the  end  of  cars  used  in  interstate  commerce  seems  to 
have  been  to  aft'ord  greater  security  for  employees  when  they 
are  hi  the  act  of  couphng  or  uncoupling  cars. — Thayer,  C.  J., 
p.  871. 
U.  S.  Y.  Boston  c&  M.  R.  Co.,  168  Fed.,  148. 

District  Court,  District  of  Massachusetts,  January  5,  1909. 
Now,  taking  that  section  as  it  stands,  and  giving  due 
weight  to  the  language  in  which  the  requirements  are  expressed, 
we  have  to  consider  just  what  they  mean  as  appHed  to  the 
question  arising  in  this  case,  and  I  shall  instruct  you,  gentlemen, 
that  section  4  requires  secure  grab  irons  or  handholds  at  those 
points  in  the  end  of  each  car  where  they  are  reasonably  necessary 
in  order  to  afford  to  men  coupling  or  uncoupling  cars  greater 
security  than  would  be  afforded  them  in  the  absence  of  any  grab 
iron  or  handhold  at  that  point  or  of  any  appliance  affording 
equal  security  with  a  grab  iron  or  handhold. — Dodge,  D.  J., 
pp.  150-151. 

U.  S.  V.  Northern  Pacific  Ry.  Co.  [imreported]. 

District  Court,  Western  District  of  Washington,  Dec.  5,  1913. 

This  handhold  or  grab  iron  must  be  secure — that  is,  so  it 

would  not  fail  a  man  when  he  needed  it — and  it  must  be  so  placed 

and  of  such  nature  as  to  conduce  to  the  greater  security  of  a  man 

who    is    coupling    or   uncoupling    the    cars.     *     *     *     As    the 


84  SAFETY  APPLIANCE  ACTS. 


reading  of  the  Act  indicates,  these  handholds  are  for  the  protec- 
tion of  the  men  engaged  in  the  work  of  coupling  or  uncoupling 
cars.  In  order  to  faithfully  comply  with  the  law  these  hand- 
holds should  be  so  located  on  a  car  and  at  such  points  where  they 
are  reasonabh^  required  in  order  that  a  brakeman  or  switchman 
may  be  afforded  greater  security  than  would  be  afforded  him  in 
the  absence  of  such  handholds. — Cushman,  D.  J . 

3.  Handholds  are  required  in  the  ends  and  sides  of  all  cars  to  which 
the  Acts  apply; 

TJ.  S,  V.  Chicago  &  N.  W.  Ry.  Co.,  157  Fed.,  616. 

District  Court,  District  of  Nebraska,  December  30,  1907. 
No  reason  is  perceived  why  a  different  intention  should  be 
imputed  to  Congress  in  requiring  grab  irons  upon  cars  and  in 
recjuiring  automatic  couplers  upon  the  same  cars.  The  mis- 
chief to  be  avoided  was  the  same  in  either  case,  and  the  remedy 
sought  by  Congress  was  obviously  the  same,  and  the  assimilation 
of  the  language  in  the  amendatory  Act  to  that  used  in  sections 
1  and  2  oi  the  original  Acts  leads  to  the  conclusion  that  it  was 
for  the  purpose  of  broadening  the  Act  from  its  original  purpose, 
as  expressed  in  section  4,  in  order  to  make  it  necessary  to  pro- 
vide grab  irons  on  a  car  whenever  it  was  necessary  to  provide 
automatic  couplers  and  a  train-brake  system. —  Munger,  D.  J., 
p.  618. 

U.  S.  V.  Baltimore  cfc  0.  R.  Co.,  184  Fed.,  94. 

District  Court,  Western  District  of  Virginia,  November  28, 1910. 
As  it  is  not  possible  to  properly  assert  that  in  enacting  sec- 
tion 4  Congress  was  requiring  the  performance  of  an  act  which  all 
men  will  agree  would  be  entirely  useless,  it  must  be  admitted 
that  Congress  may  itself  have  passed  judgment  on  the  utility  of 
handholds,  in  addition  to  other  appliances,  in  both  the  ends  and 
sides  of  all  cars.  If  so,  it  is  certain  that  neither  judges  nor  juries 
have  any  power  to  review  the  judgment  of  Congress;  and,  if  so, 
it  would  have  been  submitting  to  tne  jury  the  wisdom  or  want  of 
it  displayed  by  Congress  to  have  submitted  the  case  at  bar  to  the 
jury.  *  *  *  Aslconstruethestatute,  it  indicates  that  Congress 
has  itself  passed  judgment  on  the  utility  of  handholds  in  the  ends 
and  sides  of  cars,  and  it  must  be  read  as  an  absolute  requirement. 
In  a  case,  therefore,  where  it  is  admitted  that  there  were  no  hand- 
holds in  the  sides  of  the  cars,  I  am  unable  to  perceive  that  there 
was  any  question  of  fact  to  be  left  to  the  jury. —  McDowell,  D.  J., 
pp.  97,  98. 

Southern  Ry.  Co.  v.  Railroad,  Com.  of  Ind.,  100  N.  E.,  337.     See  also 
Adm.  Ruling  No.  67,  cited  at  p.  48,  ante. 

— (a).  And  the  maintenance  of  only  one  handhold  on  each  side  of  a 
car  is  not  a  compliance  with  the  Acts. 

TJ.  S.  V.   Wahash-Pittshurgh  Terminal  Ry.  Co.  [unreported]. 

District  Court,  Western  District  of  Pennsylvania,  Nov.  3,  1909, 

Now,  I  hold,  and  so  instruct  you,  that  the  maintenance  of 

one  grab  iron  or  handhold  on  each  side  of  the  car  near  the  ^^B" 

end  thereon  is  not  a  compliance  with  the  Act  of  Congress.     I 

think  the  necessity  of  having  such  grab  irons  or  handholds  upon 


GRAB  IRONS  OR  HANDHOLDS.  85 


the  sides  of  the  car  near  either  end  of  the  car  is  fairly  contem- 
plated by  the  very  language  of  the  Act,  because  it  contemplates 
in  this  language,  ^'secure  grab  irons  or  handholds  in  the  sides  of 
each  car."  It  contemplates,  it  seems  to  me,  although  it  is  not 
exactly  plam,  that  the  side  of  each  car  ought  to  have  more  than 
one  grab  iron  or  handhold. — Orr,  B.J. 

4.  Any  reasonable  substitute  for  a  handhold  is  a  handhold  within 
the  purview  of  the  Acts : 

V.  S.  V.  Boston  &  M.  R.  Co.,  168  Fed.,  148. 

District  Court,  District  of  Massachusetts,  January  5,  1909. 
If  at  any  place  in  the  end  of  this  car  there  was  not  a  grab  iron 
or  handhold,  properly  speaking,  but  some  other  appliance,  such 
as  a  ladder  or  brake  lever,  or  whatever  else  you  please,  which 
afforded  equal  security  with  a  grab  iron  or  a  handhold  at  that 
point,  then  I  shall  instruct  you  that  the  law  has  not  been  violated 
so  far  as  a  grab  iron  or  handhold  at  that  point  is  concerned. 
Having  something  there  which  performs  all  the  functions  of  a 
grab  iron  or  a  handhold  is  just  the  same  thing  as  having  what  is 
properly  called  a  grab  iron  or  a  handhold  at  that  point.  It  may 
not  be  possible  to  say  that  a  coupling  lever  or  a  ladder  is  a  grab 
iron  or  a  handhold,  but  if  it  affords  the  same  security  to  a  man 
who  may  need  to  use  one  that  a  grab  iron  or  a  handhold,  prop- 
erly speaking,  would  afford,  then,  in  my  judgment,  the  statute 
has  not  been  violated. — Bodge,  B.  J.,  p.  151. 

Z7.  S.  V.  Baltimore  <&  0.  R.  Co.,  D.  C,  N.  D.  West  Virginia,  Jan. 
18,  1909,  Dayton,  D.  J.  [unreported];  Z7.  S.  v.  Bcdtimore  <& 
0,  R.  Co.,  D.  C,  N.  D.  Ohio,  June  15,  1909,  Cochran,  D.  J. 
[unreported]. 

— (a).  But  the  necessity  of  handholds  on  passenger  equipment  is  not 
obviated  by  the  presence  thereon  of  air,  steam,  or  signal  hose, 
coupling  chains,  hand-brake  shafts,  or  other  appliances  affording 
some  measure  of  security  to  employees  while  coupling  and  uncou- 
pling cars ; 
TJ,  S.  V.  Norfollc  &  W.  R.  Co.,  184  Fed.,  99. 

— (b).  And  the  necessity  of  handholds  in  the  sides  near  the  rear  ends  of 
tenders  is  not  obviated  by  the  fact  that  uncoupling  levers  extend 
practically  across  the  rear  ends  thereof,  in  such  a  position  and 
of  such  a  character  as  to  serve  as  handholds,  unless  it  is  shown  by 
the  defendant  that  handholds,  if  applied,  would  not  contribute 
to  the  greater  security  of  employees  in  coupling  and  uncoupling 
cars: 
TJ.  S.  V.  Baltimore  cfc  0,  R.  Co.,  184  Fed.,  94. 

— (c).  The  determination  of  what  is,  and  what  is  not,  a  handhold  within 
the  purview  of  the  Acts,  is  exclusively  within  the  province  of  the 
jury.     See  Part  V,  Item  7,  p.  208,  post. 

(i).  The  competency  of  openings  in  the  buffers  on  the  ends  of 
cars,  as  substitutes  for  handholds,  is  not  a  proper  subject  for  ex- 
pert testimony,  where  such  openings  are  subject  to  the  personal 
inspection  of  the  jury.     See  Part  V,  Item  8-(a),  p.  209,  post. 


86  SAFETY  APPLIANCE  ACTS. 

G.  STANDARD  HEIGHT  OF  DRAWBARS. 

1.  Provisions  of  the  Law : 

That  within  ninety  days  from  the  passage  of  this  -'':ct  the  Amexi- 
can  Bailway  Association  is  authorized  hereby  to  designate  to  the 
Interstate  Commerce  Commission  the  standard  height  of  di-awbars 
for  freight  cars,  measured  perpendicular  from  the  level  of  the  tops 
of  the  rails  to  the  centers  of  the  drawbars,  for  each  of  the  several 
gauges  of  railroads  in  use  in  the  United  States,  and  shall  fix  a  maxi- 
mum variation  from  such  standard  height  to  be  allowed  between  the 
drawbars  of  empty  and  loaded  cars.  Upon  their  determination  being 
certified  to  the  Interstate  Commerce  Commission,  said  Commission 
shall  at  once  give  notice  of  the  standard  fixed  upon  to  all  common 
carriers,  owners,  or  lessees  engaged  in  interstate  commerce  in  the 
United  States  by  such  means  as  the  Commission  may  deem  proper. 
But  should  said  Association  fail  to  determine  a  standard  as  above 
provided,  it  shall  be  the  duty  of  the  Interstate  Commerce  Commis- 
sion to  do  so,  before  July  first,  eighteen  hundred  and  ninety-four,  and 
immediately  to  give  notice  thereof  as  aforesaid.  And  after  July  first, 
eighteen  hundred  and  ninety-five,  no  cars,  either  loaded  or  unloaded, 
shall  be  used  in  interstate  traffic  which  do  not  comply  with  the  standard 
above  provided  ioT.—Sec.  5,  Act  March  2,  1893  [27  Stat,  at  L.,  531]. 

*  *  "  Said  Commission  is  hereby  given  authority,  after  hearing, 
to  modify  or  change,  and  to  prescribe  the  standard  height  of  draw- 
bars and  to  fix  the  time  within  which  such  modification  or  change 
shall  become  effective  and  obligatory,  and  prior  to  the  time  so  fixed  it 
shall  be  unlawful  to  use  any  car  or  vehicle  in  interstate  or  foreign 
traffic  which  does  not  comply  with  the  standard  now  fixed  or  the 
standard  so  prescribed,  and  after  the  time  so  fixed  it  shall  be  unlawful 
to  use  any  car  or  vehicle  in  interstate  or  foreign  traffic  which  does  not 
comply  with  the  standard  so  prescribed  by  the  Commission. — Sec.  3,  Act 
April  14,  1910  [36  Stat,  at  L.,  298,  299}. 

[The  text  of  the  Commission's  Order  prescribing 
the  height  of  drawbars  will  be  found  in  the  Appendix, 
p.  244,  post.] 

2,  Standard  height  of  drawbars. 

St  Louis,  I.  M.  dc  S.  Ry,  Co.  v.  Taylor, :2m\].  S.,  281. 
Supreme  C  ourt,  May  18,  1908 

We  thmk  that  it  [the  Act]  requires  that  the  center  of  the 
drawbars  of  freight  cars  used  on  standard  gauge  railroads  shall 
be,  when  the  cars  are  empty,  34J  mches  above  the  level  of  the 
tops  of  the  rails;  that  it  permits,  when  a  car  is  partly  or  fully 
loaded,  a  variation  in  the  height  downward,  in  no  case  to  exceed 
3  inches;  that  it  does  not  require  that  the  variation  shall  be 
in  proportion  to  the  load,  nor  that  a  fully  loaded  car  shall  ex- 
haust the  full  3  inches  of  the  maximum  permissible  variation 
and  bring  its  drawbars  down  to  the  height  of  31 J  inches  above 
the  rails.  If  a  car,  when  unloaded,  has  its  drawbars  34^  inches 
above  the  rails,  and,  in  any  stage  of  loading,  does  not  lower  its 
drawbars  more  than  3  inches,  it  complies  with  the  requirements 


STANDARD  HEIGHT  OF  DRAWBARS.  87 


of  the  law.  If,  when  unloaded,  its  drawbars  are  of  greater  or 
less  height  than  the  standard  prescribed  by  the  law,  or  if,  when 
wholly  or  partially  loaded,  its  drawbars  are  lowered  more  than 
the  maximum  variation  permitted,  the  car  does  not  comply  vvdth 
the  requirements  of  the  law. —  Moody,  Justice,  p.  289. 

U,  S.  V.  Atchison,  T.  cfc  S.  F.  Ry.  Co.  [unreported]. 

District  Court,  Fourth  District  of  Arizona,  July  17,  1908. 
The  Act  also  provides  that  it  shall  be  unlawful  for  any  such 
coimnon  carrier  to  use  any  freight  car  equipped  with  a  drawbar 
which,  measuring  perpendicularly  from  the  level  of  the  tops  of 
the  rails  to  the  center  of  such  drawbar,  shall  be  more  than 
34 J  inches  in  height  or  less  than  3H  inches  in  height;  it  being 
assumed  in  such  measurement  that  the  rails  are  on  the  same 
level  as  the  car  equipped  with  such  drawbar. — Sloan,  D.  J. 

See  also  Southern  Ry.   Co.  v.  CrocJcett,  234  U.  S.,  725;  Chicago, 
M.  cfe  P.  S.  Ry.  Co.  V.  U.  S.,  196  Fed.,  882;  St.  Louis,  I.  M.  c& 
S.  Ry.  Co.  V.  Neal,  78  S.  W.,  220. 
(a).  **Shims"  defined. 

St.  Louis,  L  M.  &  S.  Ry.  Co.  v.'  Taylor,  210  U.  S.,  281. 
Supreme  Court,  May  18,  1908. 

The  evidence  showed  that  drawbars  which,  as  originally  con- 
structed, are  of  standard  height,  are  lowered  by  the  natural  effect 
of  proper  use;  that,  in  addition  to  the  correction  of  this  tendency 
by  general  repair,  devices  called  shims,  which  are  metallic  wedges 
of  different  thickness,  are  employed  to  raise  the  lowered  drawbar 
to  the  legal  standard;  and  that  in  the  caboose  of  this  train  the 
railroad  furnished  a  sufficient  supply  of  these  shims,  which  it 
was  the  duty  of  the  conductor  or  orakeman  to  use  as  occasion 
demanded. —  Moody,  Justice,  p.  294. 

3.  The  Acts  prohibit  the  use  of  a  coupler  the  drawbar  of  which  is 
lower  than  the  standard  height,  even  though  such  coupler  is  on 
the  front  end  of  a  locomotive  and  is  not    >  d  after  an  attempt  to 
use  it  has  been  unsuccessful. 
Chicago,  M.  cfc  P.  S.  Ry.  Co.  v.  U.  S.,  196  Fed.,  882. 
Circuit  Court  of  Appeals,  9th  Circuit,  May  6,  1912. 

It  may  be  true  that  no  reasonably  prudent  railroad  employee 
would  have  attempted  to  couple  to  the  front  end  of  the  loco- 
motive with  knowledge  of  its  condition,  but  that  fact  does  not 
avoid  the  violation  of  the  statute.  The  defective  drawbar 
remained  a  danger  and  a  menace,  and  when  all  is  said,  the  fact 
remains  that  its  use  in  that  condition  was  prohibited.  [Citing 
163  Fed.,  519,  and  other  cases.]  We  are  referred  to  Wahash  R. 
Co.  V.  U.  S.,  172  Fed.,  864,  as  authority  for  the  proposition  that 
a  locomotive  engine  used  in  interstate  commerce  need  not  neces- 
sarily have  an  automatic  coupler  at  both  ends.  The  court  in 
that  case  held  there  was  no  violation  of  the  Safety  Appliance 
Act  in  the  use  of  an  engine  which  had  originally  been  equipped 
with  automatic  couplers  at  the  A-end  and  the  B-end,  but  there- 
after the  lock-chain  had  been  disconnected  and  the  knuckle 
removed  from  the  coupler  at  the  B-end,  leaving  that  coupler  in 
such  condition  that  no  other  car  could  be  coupled  thereto  or 
uncoupled  therefrom,  and  where  it  appeared  that  the  coupler  at 


88  SAFETY  APPLIANCE  ACTS. 


the  A-end  was  the  only  one  used  at  the  time  in  question  in  moving 
interstate  traffic.  While  with  all  respect  for  that  court  we  are 
inclined  to  doubt  the  correctness  of  that  ruling,  we  find  it  suffi- 
cient for  the  present  case  to  point  to  the  difference  between  that 
case  and  this.  There  the  coupler  had  been  disconnected  and  the 
knuckle  taken  out  '4n  pursuance  of  a  purpose  that  it  should  not 
be  used."  In  the  case  at  bar  the  plaintiff  in  error  was  found 
using  a  defective  coupler  at  one  end  of  the  engine,  and  thereafter 
having  reversed  the  engine,  was  found  using  the  other  end  for 
the  purpose  of  transferring  oars.  Nothing  was  shown  indicative 
of  a  purpose  to  refrain  from  using  both  ends  of  the  locomotive 
for  coupling,  and  no  portion  of  the  defective  coupling  device  was 
removed.  That  device  remained  as  it  was  before,  a  trap  to  the 
unwary. — Gilbert,  C.  J.,  pp.  884-885.  [Affirming  the  judgment  of 
the  District  Court  for  the  District  of  Montana,  and  cited  with 
apparent  approval  by  the  Supreme  Court  in  Southern  Ry.  Co.  v. 
Crockett,  234  U.  S.,  725.] 

TJ.  S.  V.  Chicago,  M.  c&  P.  S.  Ry.  Co.  [unreported]. 
District  Court,  District  of  Montana,  May  2,  1911. 

As  I  view  the  law,  it  is  illegal  for  a  railroad  company  to  use 
an  engine  in  the  condition  in  which  this  engine  undoubtedly  was, 
even  though  the  defective  end  was  not  actually  emjtloyed.  By 
the  law  it  was  intended  to  prohibit  a  railroad  company  from  using 
a  car  or  engine  having  a  defective  coupler  only  upon  one  end,  even 
though  that  coupler  was  so  defective  that  a  reasonably  prudent 
man  would  not  undertake  to  make  a  coupling  therewith.  The  law 
was  intended  to  protect  the  lives  and  safety  of  all  employees, 
whether  they  are  reasonably  prudent  or  not.  As  I  view  it,  an 
engine  in  the  condition  in  whicn  this  was  was  a  possible  source  of 
great  danger,  in  that  if  an  emplo;^ee  were  standing  upon  the  foot- 
board and  the  head  of  the  deiective  coupler  was  so  low  as  not  to 
engage  with  the  coupler  upon  a  car  in  proper  condition,  thus 
permitting  the  two  cars  to  come  close  together,  the  employee 

^  might  be  crushed.  Or,  upon  the  other  hand,  an  employee  of  little 
experience  or  caution  might  undertake,  in  case  of  emergency,  to 
couple  the  defective  coupling  with  that  of  another  car,  and  thus 
imperil  his  safety  or  his  life.  In  that  view  I  have  excluded  the 
testimony  offered  on  behalf  of  the  defendant  and  declined  to  give 
certain  requested  instructions,  and  it  becomes  your  duty  to  ffiid  a 
verdict  in  favor  of  the  plaintiff  in  accordance  with  the  prayer  of 
the  complaint. — Dietrich,  D.  J.  [Affirmed  by  the  Circuit  Court 
of  Appeals  for  the  9th  Circuit  in  Chicago,  M.  <&  P.  S.  Ry.  Co.  v. 
U.  S.,  196  Fed.,  882,  ante.] 

See  also: 

Southern  Ry.  Co.  v.  Crockett,  234  U.  S.,  725. 
Supreme  Court,  June  22,  1914. 

We  deem  the  true  intent  and  meaning  to  be  that  the  provi- 
sions and  requirements  respecting  train  brakes,  automatic  coup- 
lers, grab  irons,  and  the  height  of  drawbars  shall  be  extended  to 
all  railroad  vehicles  used  upon  any  railroad  engaged  in  interstate 
commerce,  and  to  aU  other  vehicles  used  in  connection  with 


STANDARD  HEIGHT  OF  DRAWBARS— HANDBRAKES.         89 


them,  so  far  as  the  respective  devices  and  standards  are  capable 
of  being  installed  upon  the  respective  vehicles.  It  follows  that 
by  the  Act  of  1903  the  standard  height  of  drawbars  was  made 
api)hcable  to  locomotive  engines  as  well  as  to  freight  cars.  And 
so  it  was  held  by  the  Circuit  Court  of  Appeals  for  the  Ninth 
Circuit  in  CJdcago,  M.  ch  P.  S.  Ry.  Co.  v.  U.  S.,  196  Fed.,  882.— 
Pitney,  Justice,  pp.  737-738. 

4.  If  a  drawbar  is  lower  than  tlie  standard   height,  it  is  immaterial 

whether  such  condition  results  from  the  sagging  of  the  drawbar  from 
the  frame  or  from  the  sagging  of  the  entire  frame. 

Atchison,  T.  c&  S.  F.  Ry.  Co.  v.  U.  S.,  198  Fed.,  637. 

Circuit  Court  of  Appeals,  7th  Circuit,  April  23,  1912. 

In  a  train  used  in  interstate  traffic  plaintiff  in  error  had  a 
car  whose  drawbar  was  less  than  the  standard  height  above  the 
rails.  This  condition  was  observed  by  the  Government  mspector 
15  minutes  before  the  train  left  the  yard.  Violation  of  the 
statute  is  questioned  on  the  ground  that  the  condition  resulted, 
not  from  any  defect  in  the  drawbar  itself  or  in  its  attachment  to 
the  frame  of  the  car,  but  from  the  breaking  of  a  king-pm  whereby 
the  frame  to  which  the  drawbar  remained  secm-ely  attached 
was  lowered.  But  the  statute  (sec.  5)  provides  that  '^no  cars, 
either  loaded  or  unloaded,  shall  be  used  m  interstate  traffic 
which  do  not  comply  with  the  standard  above  provided  for." 
So  it  is  immaterial  whether  the  lowering  was  caused  by  the  sag- 
ging of  the  drawbar  from  the  frame  or  the  sagging  of  the  entire 
frame;  and  the  resulting  condition  of  noncompliance  with  the 
standard  height  would  be  as  observable  in  the  one  case  as  in  the 
other.— ^G^er,  C.  J.,  pp.  637-638. 

5.  The  delegation   to   the   Interstate  Commerce  Commission   and  the 

American  Railway  Association  of  authority  to  designate  the 
standard  height  of  drawbars  is  not  unconstitutional. 

See  Item  B-l-(a),  p.  10,  ante. 

H.  HANDBRAKES. 

1.  Provisions  of  the  law: 

That  on  and  after  July  first,  nineteen  hundred  and  eleven,  it  shall 
be  unlawful  for  any  common  carrier  subject  to  the  provisions  of  this 
Act  to  haul,  or  permit  to  be  hauled  or  used  on  its  line  any  car  subject 
to  the  provisions  of  this  Act  not  equipped  with  appliances  provided 
for  in  this  Act,  to  wit:  All  cars  must  be  equipped  with  secure  sill 
steps  and  efficient  hand  brakes;  aU  cars  requiring  secure  ladders  and 
secure  running  boards  shall  be  equipped  with  such  ladders  and  run- 
ning boards,  and  all  cars  having  ladders  shall  also  be  equipped  with 
secure  handholds  or  grab  irons  on  their  roofs  at  the  tops  of  such 
ladders :  Providedy  That  in  the  loading  and  hauling  of  long  commodi- 
ties, requiring  more  than  one  car,  the  hand  brakes  may  be  omitted 
on  all  save  one  of  the  cars  while  they  are  thus  combined  for  such 
purpose.— 5ec.  2,  Act  April  14>  1910  [36  Stat,  at  L.,  298\. 


90  SAFETY  APPLIANCE  ACTS. 


2.  "Efficient,"  as  used  in  the  second  section  of  the  Act  of  1910,  defined. 

JJ.  S.  V.  Northern  Pacific  Ry.  Co.  [unreported]. 

District  Court,  Western  District  of  Washington,  Dec.  5, 1913. 
Another  section  of  the  Act  provides  each  car  shall  be 
equipped  with  an  eflicient  hand  brake.  Now,  it  is  claimed  by 
the  Government  that  this  hand  brake  was  not  efficient.  All  the 
court  can  tell  you  about  what  efficiency  means  is  that  it  shall  be 
effective  as  a  hand  brake.  If  it  is  so  out  of  order  that  it  was 
ineffective  as  a  hand  brake,  the  other  qualifications  being  present 
that  I  pointed  out  to  you,  it  would  be  a  violation  of  the  law  to 
haul  or  use  a  car  in  that  condition.  If  it  was  somewhat  out  of 
order  and  it  was  still  effective  and  efficient  as  a  hand  brake,  it 
would  be  no  violation.  *  *  *  In  considering  the  efficiency  of 
a  hand  brake,  the  jury  will  take  into  consideration  the  manner  in 
which  hand  brakes  are  generally  operated  and  the  purpose  of  the 
ratchet  key.  The  efficiency  of  a  hand  brake  has  reference  to  two 
things:  Its  efficiency  for  the  purpose  of  stopping  a  car  or  train, 
or  to  hold  the  same,  and  its  efficiency  as  a  matter  of  safety  to  the 
brakeman  or  switchman  or  other  employee  engaged  in  that  work 
calling  for  the  use  of  the  hand  brake.  Therefore,  if  you  believe 
that  the  ratchet  key  was  missing,  and  its  absence  rendered  that 
hand  brake  incapable  of  being  efiiciently  operated  in  the  regular 
and  usual  manner  and  would  subject  an  employee  using  the 
same  to  greater  danger  than  he  would  be  subjected  to  if  the 
ratchet  key  were  present,  you  should  find  on  that  issue  for  the 
Government. — Cushman,  D.  J. 

I.  EXCEPTIONS  TO  THE  APPLICATION  OF  THE  ACTS. 

1.  Provisos  in  the  Acts. 

*  *  *  Provided,  That  nothing  in  this  Act  contained  shall  apply  to 
trains  composed  of  four-wheel  cars  or  to  trains  composed  of  eight- 
wheel  standard  logging  cars  where  the  height  of  such  car  from  top  of 
rail  to  center  of  coupling  does  not  exceed  twenty-five  inches,  or  to 
locomotives  used  in  hauling  such  trains  when  such  cars  or  locomotives 
are  exclusively  used  for  the  transportation  of  logs. — Sec.  6,  Act  March  2, 
1893  [27  Stat,  at  L.,  631],  as  amended  April  1,  1896  [29  Stat,  at  L.,  85]. 

*  *  *  and  the  provisions  and  requirements  hereof  and  of  said  Acts 
relating  to  train  brakes,  automatic  couplers,  grab  irons,  and  the  height 
of  drawbars  shall  be  held  to  apply  to  all  trains,  locom.otives,  tenders, 
cars,  and  similar  vehicles  used  on  any  railroad  engaged  in  interstate 
commerce,  and  in  the  Territories  and  the  District  of  Columbia,  and  to 
all  other  locomotives,  tenders,  cars,  and  similar  vehicles  used  in  con- 
nection therewith,  excepting  those  trains,  cars,  and  locomotives  ex- 
empted by  the  provisions  of  section  six  of  said  Act  of  March  second, 
eighteen  hundred  and  ninety-three,  as  amended  by  the  Act  of  April 
first,  eighteen  hundred  and  ninety-six,  or  which  are  used  upon  street 
railways.— 5'ec.  1,  Act  March  2,  1903  [32  Stat,  at  L.,  943].  [But  see  Item  C-4, 
p.  33,  ante.] 

*  *  *  All  cars  must  be  equipped  with  secure  sill  steps  and  efficient 
handbrakes;  all   cars   requiring   secure    ladders  and  secure  running 


EXCEPTIONS.  91 


boards  shall  be  equipped  with  such  ladders  and  running  boards,  and  all 
cars  having  ladders  shall  also  be  equipped  with  secure  hand  holds  or 
grab  irons  on  their  roofs  at  the  tops  of  such  ladders:  Provided,  That  in 
the  loading  and  hauhng  of  long  commodities,  requiring  more  than  one 
car,  the  hand  brakes  may  be  omitted  on  all  save  one  of  the  cars  while 
they  are  thus  combined  for  such  purpose. — Sec.  2,  Act  April  14,  1910  [36 
Stat,  at  L.,  298]. 

That  any  common  carrier  subject  to  this  Act  using,  hauling,  or 
permitting  to  be  used  or  hauled  on  its  line,  any  car  subject  to  the 
requirements  of  this  Act  not  equipped  as  provided  in  this  Act,  shall 
be  liable  to  a  penalty  of  one  hundred  dollars  for  each  and  every  such 
violation,  to  be  recovered  as  provided  in  section  six  of  the  Act  of  March 
second,  eighteen  hundred  and  ninety- three,  as  amended  April  first, 
eighteen  hundred  and  ninety-six:  Provided,  That  where  any  car  shall 
have  been  properly  equipped,  as  provided  in  this  Act  and  the  other  Acts 
mentioned  herein,  and  such  equipment  shall  have  become  defective 
or  insecure  while  such  car  was  being  used  by  such  carrier  upon  its 
line  of  railroad,  such  car  may  be  hauled  from  the  place  where  such 
equipment  was  first  discovered  to  be  defective  or  insecure  to  the 
nearest  available  point  where  such  car  can  be  repaired,  without  lia- 
bility for  the  penalties  imposed  by  section  four  of  this  Act  or  section 
six  of  the  Act  of  March  second,  eighteen  hundred  and  ninety- three,  as 
amended  by  the  Act  of  April  first,  eighteen  hundred  and  ninety-six,  if 
such  movement  is  necessary  to  make  such  repairs  and  such  repairs 
can  not  be  made  except  at  such  repair  point;  and  such  movement  or 
hauling  of  such  car  shall  be  at  the  sole  risk  of  the  carrier,  and  nothing 
in  this  section  shall  be  construed  to  relieve  such  carrier  from  liability 
in  any  remedial  action  for  the  death  or  injury  of  any  railroad  employee 
caused  to  such  employee  by  reason  of  or  in  connection  with  the  move- 
ment or  hauling  of  such  car  with  equipment  which  is  defective  or 
insecure  or  which  is  not  maintained  in  accordance  with  the  require- 
ments of  this  Act  and  the  other  Acts  herein  referred  to;  and  nothing 
in  this  proviso  shall  be  construed  to  permit  the  hauling  of  defective 
cars  by  means  of  chains  instead  of  drawbars,  in  revenue  trains  or  in 
association  with  other  cars  that  are  commercially  used,  unless  such 
defective  cars  contain  live  stock  or  "perishable"  freight. — Sec.  4,  Act 
April  14,  1910  [36  Stat,  at  L.,  29, 


(a).  "Necessary,"  as  used  in  the  proviso  in  the  Act  of  1910,  defined: 

TJ.  S.  V.  Northern  Ps^ciHc  Ry.  Co.  [unreported]. 

District  Court,  Western  District  of  Washington,  Dec.  6,  1913. 
Regarding  the  other  two  counts  which  concern  missing 
coupling  and  uncoupling  levers  at  Auburn,  you  will  determine 
whether  or  not  it  was  necessary  to  haul  those  cars  on  beyond 
Auburn,  in  order  to  repair  these  defects,  to  some  repair  point. 
Now,  what  is  necessary,  you  are  to  determine  as  practical  men. 
It  means  what  was  reasonably  necessary,  operatmg  a  road  as 
practical  men  should,  in  view  of  this  law.  It  does  not  mean 
whether  it  would  have  been  possible  with  the  utmost  endeavor 
to  have  repaired  them  there,  taking  unlimited  time;  it  does  not 
mean  anything  of  that  kind.     *     *     * 


92  SAFETY  APPLIANCE  ACTS. 


And  by  "necessary"  is  not  meant  that  it  was  impossible  to 
repair  said  cars  at  Auburn,  by  sending  out  repair  car  or  sending 
men  from  the  shops  to  repair  the  same;  but  if  you  believe  that 
the  only  practicable  method  of  railroading  requires'  that  such 
cars  when  out  of  repair  should  be  taken  to  the  shops  for  that 
purpose,  and  that  it  was  reasonably  necessary  in  view  of  the 
practicable  )perati)n  of  railroading  to  repair  such  cars  in  the 
shops,  then  tne  movement  thereof  for  such  purpose  was  not  a 
violation  of  the  law,  and  you  will  find  for  the  defendant  on  these 
causes  of  action. — Cushman,  D.  J. 

(b).  "Nearest  available  point"  as  used  in  the  proviso  in  the  Amendment 
of  1910,  defined. 
U.  S.  V.  Northern  PaciHc  Ry.  Co.,  [unreported]. 

District  Court,  Western  District  of  Washington,  Dec.  6, 1913. 
The  law  provides  that  cars,  after  the  discovery  of  defect,  if 
properly  equipped,  the  sense  of  it  being  if  they  are  properly 
equipped  when  they  left  the  last  repair  point,  and  the  discovery 
of  the  detect  has  occurred  while  it  is  in  use  along  the  line,  it 
must  be  taken  to  the  nearest  available  repair  point.  The  nearest 
available  repair  point  means  the  nearest  available  repair  point 
for  making  repairs  of  the  kind  that  that  car  needs.  Of  course 
you  can  understand,  as  far  as  this  law  is  concerned,  an  engine 
comes  within  it.  There  could  be  an  engine  partly  destroyed, 
and  there  might  be  very  few  repair  points  where  it  could  be 
repaired.  I  state  this  extreme  illustration  to  give  you  a  means 
of  understanding  what  the  word  '^  available"  means  there. — 
Oushman,  D.  J. 

2.  The  Acts,  as  amended  prior  to  April  14,  1910,  permitted  the 
necessary  movement  of  defective  cars  to  the  nearest  point  at 
which  repairs  might  be  effected,  provided  they  were  excluded  from 
commercial  use  and  dissociated  from  other  cars  commercially  em- 
ployed ;  * 
Southern  Ry.  Co,  v.  Snyder,  187  Fed.,  492. 

Circuit  Court  of  Appeals  6th  Circuit,  May  3,  1911. 

While  a  carrier  ma}'  move  empty  cars  by  themselves  to 
repair  shops  for  the  purpose  of  having  them  placed  in  condition 
to  comply  with  the  Safety  Appliance  Acts,  without  being  guilty 
of  a  violation  of  those  Acts  while  engaged  in  an  honest  effort 
to  meet  their  requirements,  yet  the  cars  in  any  movement  for 
the  purpose  of  repairing  them  after  they  so  become  defective 
must,  in  order  not  to  be  subject  to  the  Act,  be  wholly  excluded 
from  commercial  use  themselves  and  from  other  vehicles  which 
are  commercially  employed.  [St.  Louis  <&  S.  F.  R.  Co.  v.  DeTkj 
158  Fed.,  931;  TJ.  S.  v.  Southern  Pacific  Co.,  169  Fed.,  407; 
Chicago  Junction  Ry.  Co.  v.  King,  169  Fed.,  372]. —  Knappen, 
C.  J.,  p.  497. 
Southern  Ry.  Co.  v.  Snyder,  205  Fed.,  868. 

C^cuit  Court  of  Appeals,  6th  Circuit,.  June  3,  1913. 

In  our  former  opinion  we  pointed  out,  in  effect,  that  while 
a  carrier  may,  without  violating  the  Safety  Appliance  Acts, 
move  empty  cars  by  themselves  for  the  purpose  of  having  them 

*  But  see  Item  B-2,  p.  10,  ante. 


EXCEPTIONS.  93 


placed  in  condition  to  comply  with  those  Acts,  yet,  in  any 
movement  for  the  purpose  even  of  repairs,  after  they  have 
become  so  defective,  such  cars  must,  in  order  to  escape  subjec- 
tion to  the  Act,  be  wholly  excluded  from  commercial  use  and 
from  connection  with  other  vehicles  commercially  employed. — 
Knappen,  C.  J.,  p.  870. 

Chicago  <&  N.  W.  Ry.  Co.  v.  U.  S.,  168  Fed.,  236. 

Circuit  Court  of  Appeals,  8th  Circuit,  March  10,  1909. 
The  only  practical  method  of  railroading  requires  that  such 
vehicles  when  out  of  repair  shall  be  taken  to  the  shops;  and  if 
they  are  wholly  excluded  from  commercial  use  themselves,  and 
from  other  vehicles  which  are  commercially  employed,  they  do 
not  fall  within  any  of  the  classes  covered  by  the  Safety  Appliance 
Acts.  A  carrier  may  move  one  or  more  cars  by  themselves  to 
repair  shops  for  the  purpose  of  having  them  placed  in  a  condition 
to  conform  to  the  Safety  Appliance  Acts  without  being  guilty  of 
a  violation  of  those  Acts  wnile  thus  engaged  in  an  honest  effort 
to  meet  their  requirements. — Amidon,  D.  J.,  p.  238. 

U.-S.  V.  Southern  Pacific  Co.,  169  Fed.,  407. 

Circuit  Court  of  Appeals  8th  Circuit,  April  3,  1909. 

As  a  corollary  to  the  classification  so  made  [in  C.  <&  N.  W, 
Ry.  Co.  V.  U.  S.,  168  Fed.,  236]  we  reached  and  stated  the  con- 
clusion that  any  movement  of  vehicles  after  they  became  defec- 
tive, for  the  purpose  of  repairing  them  must,  in  order  to  escape 
the  penalties  imposed  by  the  Act,  be  ' 'wholly  excluded  from 
commercial  use  themselves,  and  from  other  vehicles  which  are 
commercially  employed." — Adams,  C.  J.,  p.  409. 

U.  S.  V.  Rio  Grande  Western  Ry.  Co.,  174  Fed.,  399. 

Circuit  Court  of  Appeals,  8th  Circuit,  November  19,  1909. 
Complaint  is  made  that  the  court  charged  the  jury  that  if 
they  believed  from  the  evidence  as. to  any;  particular  count  that 
the  defendant  moved  the  car  therein  specified,  that  when  it  was 
so  moved  its  coupling  apparatus  was  so  defective  that  it  would 
not  couple  automatically  by  impact,  or  could  not  be  uncoupled 
without  the  necessity  of  a  man  going  between  the  ends  of  the 
cars  coupled  together,  they  should  find  the  defendant  guilty  as 
to  such  count  unless  the  movement  and  the  only  movement 
made  was  necessary  for  the  purpose  of  repairing  the  defective 
coupler.  If  this  instruction  was  correct  in  its  application  to  the 
evidence  upon  the  issues  involved  in  the  trial  of  any  single  count 
of  the  petition,  it  must  be  sustained.  *  *  *  There  was  no 
evidence  that  this  car  was  hauled  over  to  the  shop  for  any  other 
purpose  than  to  have  the  necessary  repairs  made  upon  it  or  that 
its  trip  to  the  shop  tracks  was  or  could  have  been  used  for  any 
other  purpose  than  to  secure  the  making  of  these  necessary 
repairs.  In  this  state  of  the  case  the  charge  of  the  court  was 
warranted  by  the  decision  and  opinion  of  this  court  in  Chicago  c& 
N.  W.  Ry.  Co.  V.  U.  S.  [168  Fed.,  236],  and  the  judgment  below  is 
affirmed. — Sanhorn,  C.  J .,  p.  400. 

SiegelY.  New  Yorlc  Central  cfc  H.  R.  R.  Co.,  178  Fed.,  873. 


94  SAFETY  APPLIANCE  ACTS. 


See  also: 

Galveston,  H.  dc  S,  A.  Ry.  Co.  v.  U.  S.,  199  Fed.,  891. 

Circuit  Court  of  Appeals,  5th  Circuit,  October  7,  1912. 

Under  the  Act  of  March  2,  1903,  before  its  amendment  of 
1910,  I  think  the  carrier,  if  its  trails  left  a  repair  point  properly 
equipped,  is  not  compelled  upon  discovery  of  a  defect  oetween 
repair  points,  to  hold  its  tram  at  the  point  of  discovery  until 
the  defect  is  remedied,  in  cases  where  it  can  not  be  remedied  at 
such  point  with  the  means  at  hand,  but  has  the  right  to  move 
the  train  in  its  disabled  condition  to  the  nearest  repair  point,  if 
necessary  to  accomplish  the  repairs. 

The"  courts  are  in  conflict  as  to  whether  the  statute  permits 
this  movement  in  connection  with  other  cars  being  commercially 
used.  The  original  and  amendatory  statutes  prescribe  no  sucn 
limitation,  and  it  does  not  seem  to  me  that  a  movement  can  be 
said  for  that  reason  alone  to  be  inhibited  as  a  matter  of  law. — 
Gruhh,  D.  J.  [concurring],  ])p.  896-897. 
U.  S.  V.  Southern  Pacific  Co.,  154  Fed.,  897. 

District  Court,  District  of  Oregon,  April  1,  1907. 

Admittedly,  if  a  breakage  occurs  between  stations  where 
repair  shops  are  located,  and  the  repair  can  not  be  made  without 
taking  the  car  to  such  a  place,  the  company  can  not  be  held  liable 
until  it  has  had  the  opportunity  of  matdng  the  repair,  and  in  that 
event  it  would  be  justiiied  in  hauling  the  car  in  the  train  to  the 
succeeding  station,  where  such  repairs  could  be  made. —  Wolver- 
t(m,D.J.,j>.  901. 
U.  S.  V.  Chicago  Great  Western  Ry.  Co.,  162  Fed.,  775. 

District  Court,  Northern  District  of  Iowa,  May  6,  1908. 

But  if  such  means  and  appUances  were  not  at  hand  to  so 
remedy  the  said  defects,  the  defendant  would  have  the  right, 
without  incurring  the  penalty  of  the  law,  to  haul  the  cars  upon 
which  said  air  brakes  so  became  defective  or  inoperative  to  the 
nearest  repair  point  on  its  line  of  railroad,  where  such  defects 
could  be  repaired  and  the  cars  and  air  brakes  put  in  an  operative 
condition. — Reed,  D.  J.,  p.  780. 
U.  S.  V.  Atchison,  T.  &  S.  F.  Ry.  Co.,  167  Fed.,  696. 

District  Court,  Northern  District  of  Cahfornia,  December  1, 1908. 
But  if  it  did  not  at  such  time  and  place  have  the  requisite 
means  or  apphances  at  hand  to  remedy  such  defect  and  put  the 
couplers  and  grab  irons  in  operative  condition,  then  it  [defendant] 
would  have  the  right,  without  incurring  the  penalty  of  the  law,  to 
haul  such  car  or  cars  to  the  nearest  repair  point  on  its  hne  where 
such  defects  could  be  repaired  and  the  apphances  put  in  operative 
condition. — De  Haven,  D.  J.,  p.  698. 
U.  S.  V.  Southern  PaciHc  Co.,  167  Fed.,  699. 

District  Court,  Northern  District  of  California,  December  4, 1 908. 

Should  such  defect  be  of  a  heavy  nature  only  to  be  made  at 

repair  stations,  then  the  company  would  have  the  right,  without 

incurring  the  penalty  of  the  law,  to  haul  such  car  to  the  nearest 

place  where  such  repairs  can  be  made. — De  Haven,  D.  J.,  p.  701. 


EXCEPTIONS.  95 


v.  S.  V.  Atchison,  T.  <&  S.  F.  Ry.  Co.,  [unreported]. 

District  Court,  Fourth  District  of  Arizona,  July  17,  1908. 
I  charge  you  further  that  in  the  case  of  a  car  which  may  have 
its  drawbar  pulled  out  en  route  it  is  the  duty  of  the  common  car- 
rier to  make  the  necessary  repair  at  the  nearest  point  where  such 
repair  can  be  made.     It  may  haul  such  car  to  such  nearest  point 
and  no  farther,  using  such  care  and  caution  as  may  be  needed  to 
insure  the  highest  degree  of  safety  and  security  while,  being  so 
hauled. — Sloan,  D.  J. 
U.  S.  V.  Louisville  &  N.  R.  Co.,  156  Fed.,  193;  V.  S.  v.  Louisville  db 
N.  R.  Co.,  156  Fed.,  195;    U.  S.Y.Baltimore  &  0.  R.  Co.,  D.  C, 
N.  D.  West  Virginia,  Jan.  18,  1909,  Dayton,  D.  J.  [unreported]. 
But  see: 
Chicago,  M.  &  St.  P.  Ry.  Co.  v.  V.  S.,  165  Fed.,  423. 

Circuit  Court  of  Appeals,  8th  Circuit,  November  27,  1908. 
Our  conclusion  is  that  the  hauKng  by  a  railroad  company 
from  one  State  to  another  of  a  car  not  equipped  with  the  required 
safety  appliances,  upon  its  own  truclcs,  as  a  part  of  a  train  of  other 
cars  moving  in  interstate  commerce,  is  a  use  of  the  defective  car 
in  violation  of  the  Act  of  Congress,  though  it  is  empty  and  is  being 
transported  to  a  repair  shop  in  the  State  of  its  destination.— 
Hoolc,  C.  J.,ip.  424. 
U.  S.  y.  St.  Louis,  L  M.  &  S.  Ry.  Co.,  154  Fed.,  516. 

District  Court,  Western  District  of  Tennessee,  June  11,  1906. 
On  June  27  tliey  [the  defective  cars  involved]  were  hauled  as 
a  part  of  this  freight  train,  composed  of  about  thirty  cars,  out  of 
the  State  of  Tennessee  into  the  State  of  Arkansas  by  defendant 
railroad  company.  These  two  particular  cars  were  way-biUed 
to  Baring  Cross  shops,  Arkansas,  near  Little  Rock,  to  be  repaired. 
*  *  *  The  fact  that  these  two  cars  were  being  hauled  to  the 
repair  shops  in  the  manner  disclosed  by  the  evidence  can  not 
avail  the  defendant.  The  statute  makes  no  such  exception. — 
McCall,  D.  J.,  pp.  517-518,  519. 

(a).  But   it  was   never   intended   by  the  Acts  that  a  defective  car 
should  be  removed  from  a  repair  point  without  repairs  of  statutory 
defects  being  made; 
V.  S.  V.  Chicago  Great  Western  Ry.  Co.,  162  Fed.,  775. 

District  Court,  Northern  District  of  Iowa,  May  6,  1908. 
But  if  such  defective  or  inoperative  condition  of  the  cou- 
plers and  grab  irons  existed  at  a  repair  point  on  defendant's  line, 
or  at  a  place  where  such  defects  could  have  been  remedied,  then 
if  it  hauled  said  car  or  cars  from  such  place  in  such  condition, 
it  would  do  so  at  its  peril  and  be  liable  for  the  statutory  penalty 
for  so  hauling  or  using  such  car  described  in  any  count  of  the 
petition.— i?ee(Z,  D.  J.,  pp.  779-780. 
U.  S.  y.  Atchison,  T.  c&  S.  F.  Ry.  Co.,  167  Fed.,  696. 

District  Court,  Northern  District  of  California,  Dec.  1,  1908. 

But  if  such  defective  or  inoperative  condition  of  the  couplers 

and  grab  irons  existed  at  a  repair  point  on  defendant's  line,  or 

at  a  place  where  such  defects  could  have  been  remedied,  then 

if  it  hauled  said  car  or  cars  from  such  place  in  such  condition  it 


96  SAFETY  APPLIANCE  ACTS. 


would  do  so  at  its  peril  and  be  liable  for  the  statutory  penalty 
for  so  hauling  or  using  such  car  described  in  any  count  of  the 
petition.     *     *     * 

You  are  instructed  that  if  the  defendant  hauled  any  car 
over  its  line  of  railroad  from  or  through  any  point  in  a  defective 
condition  it  is  wholly  immaterial  that  the  defendant  had  no 
shops,  material,  or  facilities  for  repairing  the  defects  at  that 
place  if  it  can  be  shown  that  said  car  had  started  from  a  repair 
point  upon  the  line  of  defendant's  railroad  in  the  same  defective 
condition,  and  where  such  repairs  could  have  been  made  had 
the  defendant  exercised  reasonable  diligence  and  foresight  in 
providing  such  repair  point  with  the  proper  material  and  facili- 
ties for  the  making  of  all  repairs  necessary  to  comply  with  the 
Safety  Appliance  Act,  your  verdict  should  be  for  the  Govern- 
ment as  to  each  and  every  car  so  hauled. — De  Haven ,  D.  J., 
p.  698. 

U.  S.  V.  Southern  Pacific  Co.,  167  Fed.,  699. 

District  Court,  Northern  District  of  California,  Dec.  4,  1908. 
And  if  a  defect  exists  at  a  repair  point,  or  at  any  place 
where  such  defect  could  have  been  repau-ed,  and  the  company 
moves  the  car  while  in  the  defective  condition,  it  does  so  at  its 
peril,  and  it  becomes  then  subject  to  the  penalty  of  the  law. — 
ue  Haven,  D.  J.,  p.  701. 

U.  S.  V.  Baltimore  <&  0.  R.  Co.  [unreported]. 

District  Court,  Northern  District  of  West  Virginia,  Jan.  18, 1909. 
Now  that  you  may  understand  that  more  fully  let  me  say 
to  you  that  it  is  entirely  reasonable  that  a  railroad  company 
shoidd  be  required  to  maintain  repair  shops  or  repair  material 
and  make  inspections  and  repairs  at  places  within  reasonable 
distances  of  each  other;  that  in  establishing  such  repair  points 
the  company  has  the  right,  in  the  ordinary  operation  of  their 
trains  between  those  repair  points,  when  a  train  is  in  operation 
and  defects  arise,  reasonably,  to  carry  the  car,  the  appliances  on 
which  are  broken  or  defective,  to  the  first  repair  point,  but  they 
do  not  have  the  right,  having  carried  it  to  that  point,  to  take  it 
beyond  that  point  without  discovering  and  without  making  the 
necessary  repairs  to  those  safety  appliances  attached  to  that  car, 
and  if  they  do  carry  it  beyond  that  point  they  are  liable  to  the 
penalty  provided  for  by  this  law. — Dayton,  D.  J. 

U.  S.  V.  Baltimore  cfe  0.  R.  Co.  [unreported]. 

District  Court,  Northern  District  of  Ohio,  June  15,  1909. 

Now,  I  think  that  if  a  railroad  company  hauls  a  car  out  of  an 

inspection  and  repair  yard  when  a  reasonable  inspection  would 

ascertain  the  defect,  why,  the  railroad  company  is  liable  under 

this  modified  view  of  the  meaning  of  the  statute. — Cochran,  D.  J. 

U.  S.  V.  Southern  Pacific  Co.  [unreported]. 

District  Court,  District  of  Nevada,  November  24,  1909. 

But  if  such  a  defective  or  inoperative  condition  of  the  cou- 
plers existed  at  a  repair  point  on  defendant's  line,  or  at  a  place 
where  such  defects  could  have  been  remedied,  then  if  it  hauled 
such  car  or  cars  from  such  place  in  such  condition,  it  would  do  so 
at  its  peril  and  be  liable  for  the  statutory  penalty  for  so  hauling 
or  using  such  car. — Farrington,  D.  J. 


EXCEPTIONS.  97 


Snyder  v.  Southern  Ry.  Co.  [unreported]. 

Circuit  Court,  Eastern  District  of  Tennessee,  January  21,  1910. 

However,  under  the  proof  in  this  case  it  appeared  that  the 
car  in  question  had  arrived  at  the  Coster  yards  of  the  defendant 
in  a  defective  condition  several  days  before  the  accident ;  that  it 
had  not  been  repaired  at  the  Coster  shops  where  it  coiild  have 
been  repaired,  but  had  been  hauled  away  from  this  repair  point 
enroute  to  the  repair  shops  at  Lenoir  City,  several  miles  away, 
for  the  purpose  of  being  there  repaired. 

I  think  it  clear,  under  the  authorities,  that  when  the  car  was 
put  in  use  even  to  be  hauled  to  another  repair  shop  after  it  had 
been  for  some  time  at  a  repair  shop  where  it  could  have  been 
repaired  it  was  being  hauled  in  this  defective  condition  in  viola- 
tion of  the  Safety  Appliance  Act.  [  TJ.  S.  v.  Chicago,  M.  <&  St.  P. 
Ry.  Co.,  149  Fed.,  486;  U.  S.  v.  St.  Louis,  I.  M.  cfc  S.  Ry.  Co., 
154  Fed.,  516;  TJ.  S.  v.  Lehigh  Valley  R.  Co.,  162  Fed.,  410-412; 
JJ.  S.  V.  Philadelphia  &  R.  Ry.  Co.,  162  Fed.,  405-409;  Chicago, 
M.  &  St.  P.  Ry.  Co.  V.  V.  S.,  165  Fed.,  423;  U.  S.  v.  Atchison, 
T.  &  S.  F.  Ry.  Co.,  167  Fed.,  696;  TJ.  S.  v.  Southern  Pacific  Co., 
167  Fed.,  699;  TJ.  S.  v.  Southern  Pacific  Co.,  D.  C,  D.  Nevada, 
Nov.  24,  1909,  Farrington,  D.  J.  (unreported)]. 

Having  undertaken  to  haul  the  car  away  from  a  repair  point, 

it  obviously  remained,  I  think,  within  the  provisions  of  the  Act, 

even  although  the  effort  was  afterwards  made  to  detach  the  car 

and  return  it  to  the  KnoxviUe  yard  for  repairs. — Sanford,  D.  J. 

TJ.  S,  V.  St.  Louis,  I.  M.  dc  S.  Ry,  Co.,  154  Fed.,  516. 

— (i).  Nor  that  a  carrier  subject  to  the  Acts  should  excuse  a  failure  to 
repair  a  statutory  defect  at  the  point  of  its  discovery  by  showing 
that  the  car  involved  was  also  defective  in  other  respects  which 
could  have  been  repaired  only  at  the  point  to  which  the  car  was 
moved. 

TJ.  S.  V.  Southern  Pacific  Co.,  154  Fed.,  897. 

District  Court,  District  of  Oregon,  April  1,  1907. 

A  combining  of  other  car  defects  with  the  defects  com- 
plained of  can  afford  no  excuse  for  delaying  the  repairs  requisite 
to  a  compliance  with  the  law;  and  for  this  reason  alone  the 
answers  are  whoUy  insufficient. —  Wolverton,  D.  J.,  p.  899. 

3.  HELD :  The  proviso  in  the  Amendment  of  1910  is  declaratory  of  the  ju- 
dicial interpretation  placed  upon  the  Acts  as  previously  amended. 
Galveston,  H.  &  S.  A.  Ry.  Co.  v.  TJ.  S.,  199  Fed.,  891. 

Circuit  Court  of  Appeals,  5th  Circuit,  October  7,  1912. 

By  incorporating  the  provision  just  quoted,  [proviso  in  the 
Act  of  1910],  and  declaring  the  same  as  a  supplement  to  the  Act 
of  1893,  we  may  safely  infer  that  it  was  intended  by  Congress 
to  give  the  proper  construction  to  the  Act  of  1893. — Pardee, 
C.  J.,  p.  896. 

While  the  language  of  section  2  of  the  Act  of  March  2,  1903, 
might  permit  of  a  construction  that  would  impose  an  absolute 
duty  on  the  carrier,  and  absolute  liability  for  the  penalty  pro- 
vided for  operating  its  train  when  not  equipped  as  rec[uired, 
and  while  some  courts  have  so  construed  it,  I  agree  with  the 

50611—15 7 


98  SAFETY  APPLIANCE  ACTS. 


majority  opinion  that  this  would  not  be  a  reasonable  interpre- 
tation of  the  original  statute,  and  that  the  amendatory  Act  of 
April  14,  1910,  was  intended  to  be  declaratory  only  of  the  court's 
interpretation,  to  meet  the  decisions  mentioned. — Gruhh,  D.  J. 
[concurring],  p.  896. 
But  see  TJ.  S.  v.  Colorado  Midland  Ry.  Co.,  202  Fed.,  732. 
4.  A  defendant  carrier  must  bring  itself  strictly  within  the  terms 
of  the  proviso  in  order  to  avail  itself  of  the  immunity  thereby 
afforded.     See  Part  V,  Item  B-2-(a),  p.  212,  post. 
6.  In  order  to  bring  itself  within  the  terms  of  the  Proviso  in  the  Act 
of  April  14,  1910,  a  carrier  seeking  to  justify  the  movement  of  a 
defective  car  to  a  particular  point: 
— (a).  Must  establish  the  necessity  of  the  movement  alleged  to  have 
been  made  for  the  purpose  of  repair. 
U.  S.  V.  Chesapealce  &  0.  Ry.  Co.,  213  Fed.,  748. 
Circuit  Court  of  Appeals,  4th  Circuit,  February  27,  1914. 

However,  in  this  instance,  it  is  admitted  by  the  railroad 
that  it  was  not  necessary  to  haul  the  car  in  q|uestion  to  the 
shops  or  to  any  particular  point  in  order  to  repair  the  defective 
eqmpment.  It  could  have  been  repaired  at  the  Seventeenth 
Street  yard,  where  the  defect  was  discovered,  or  it  could  have 
been  repaired  at  the  Broad  Street  yard ;  and  no  excuse  is  shown 
for  not  making  the  repairs  while  the  car  was  kept  at  either  of 
these  places.  In  other  words,  we  think  the  statute  contem- 
plates that  if  when  the  defective  equipment  is  discovered  it  can 
be  repaired  at  the  point  where  the  discovery  is  first  made,  then 
it  is  incumbent  upon  the  railroad  company  to  repair  the  same 
as  soon  as  the  services  of  a  repair  man  can  be  had,  but  if  the 
defect  is  of  such  character  that  it  can  not  be  repaired  at  the 
point  where  discovered,  such  car  may  be  hauled  to  the  nearest 
available  point  for  that  purpose,  and  not  used  in  the  meantime 
on  its  lines  between  stations  or  in  its  yards. 

The  failure  on  the  part  of  a  railroad  company,  as  in  this  in- 
stance, to  repair  defective  equipment,  as  to  the  existence  of 
which  the  company  had  had  knowledge  for  the  space  of  12  days, 
during  which  time  such  car  had  been  moved  from  one  place  to 
another,  from  time  to  time,  on  its  tracks,  indicates  that  it  was 
unmindful  of  the  duty  imposed  upon  it  by  the  statute. — Pritch- 
ard,  C.  J.,  p.  752. 
Galveston,  H.  cfc  S.  A.  Ry.  Co.  v.  TJ.  S.,  199  Fed.,  891, 

Circuit  Court  of  Appeals,  5th  Circuit,  October  7,  1912. 

The  courts  are  in  conflict  as  to  whether  the  statute  permits 
this  movement  in  connection  with  other  cars  being  commer- 
cially used.  The  original  and  amendatory  statutes  prescribe 
no  such  limitations,  and  it  does  not  seem  to  me  that  a  move- 
ment can  be  said  for  that  reason  alone  to  be  inhibited  as  a 
matter  of  law.  The  question  in  each  case  depends  upon  whether 
there  is  shown  to  exist  a  reasonable  necessity  for  moving  the 
train  to  accomplish  the  repairs,  and  this  is,  ordinarily,  properly 
determinable  by  a  jury. — Gruhb,  D.  J.  [concurring],  pp.  896,  897. 
U,  S.  V.  Trinity  <&  B.  V.  Ry.  Co.,  211  Fed.,  448. 

Circuit  Court  of  Appeals,  5th  Circuit,  December  1,  1913. 

Unless  the  evidence  of  the  defendant  tends  to  show,  in  addi- 


EXCEPTIONS.  99 


tion  to  the  facts  above  recited,  to  wit  (that  the  car  was  properly 
equipped  at  starting  on  the  journey,  and  became  defective 
while  being  used  on  the  line  of  railroad  of  defendant),  that  the 
movement  of  the  car  in  the  train  was  necessary  to  repair  the 
defect,  and  that  the  repair  could  not  have  been  made  except 
at  such  repair  pomt,  then  the  defendant  has  not  brought  itself 
under  the  proviso,  and  there  was  no  question  of  disputed  facts 
to  submit  to  the  jury. — Call,  D.  J.,  p.  452. 

Chicago,  B.  &  Q.  Ry  Co.  v.  Z7.  S.,  211  Fed.,  12. 

circuit  Court  of  Appeals,  8th  Circuit,  November  28,  1913. 
The  trial  court  submitted  to  the  jury  the  question  whether 
the  car  was  defective  when  it  started  from  the  Twelfth  Street 
yard,  or  became  defective  in  the  course  of  its  journey  from  that 
yard  to  the  Murray  yard,  charging  them  that  if  the  defect  arose 
while  the  car  was  in  transit,  the  company  would  not  be  liable. 
The  jury  accepted  the  testimony  of  the  Government  inspectors, 
and  found  that  the  car  was  defective  before  it  started  upon 
the  movement  complained  of.  It  is  quite  clear,  therefore, 
that  the  company  is  not  protected  by  the  proviso  upon  which 
it  relies.  That  is  so  for  two  reasons:  First,  the  defect  was  of 
a  character  that  could  have  been  supplied  in  the  Twelfth  Street 
yard.  It  consisted  of  a  small  clevis  which  had  fallen  out  of 
the  coupling  appliance.  This  could  have  been  supplied  as  well 
in  one  yard  as  the  other,  and  a  car  can  be  moved  for  purposes 
of  repair  under  the  proviso  only  when  such  a  movement^  is 
necessary;  that  is,  when  the  repair  is  of  a  character  which 
requires  the  taking  of  the  car  to  some  particular  point.  Second, 
the  movement  which  is  permitted  must  be  for  the  purpose  of 
maldng  repairs,  and  the  evidence  showed  that  the  movement 
complained  of  was  not  of  that  character. — Amidon,  D.  J.,  p.  15. 

U.  S.  V.  Northern  Pacific  Ry.  Co.,  [unreported]. 

District  Court,  Western  District  of  Washington,  December  5, 1913. 
This  same  law  provides  that  if  a  car  is  properly  equipped— 
the  court  interprets  that  to  mean,  and  instructs  you — that  is, 
if  it  is  properly  equipped  when  it  leaves  a  terminal  where  it  is 
the  duty  to  inspect  and  repair  cars,  that  if  it  is  properly  equipped 
when  it  leaves  such  point,  and  then  becomes  defective  out  on 
the  line  when  it  is  being  used,  that  it  then  may  be  removed  to 
the  nearest  available  repair  point,  providing  the  movement  of 
the  car  is  necessary  to  repair  it,  and  providing  that  it  could  not 
be  repaired  except  at  such  repair  point. — Cushman,  D.  J. 

U.  S.  V.  Northern  Pacific  Ry.  Co.,  [unreported]. 

District  Court,  Western  District  of  Wasliington,  December  6,1913. 
The  court  instructs  you  that  the  same  statute  prohibiting 
the  movement  of  defective  equipment  as  above  explained  also 
provides  that  where  any  car  shall  have  been  properly  equipped 
with  automatic  coupling  devices,  and  suflScient  handholds  and 
hand  brakes,  and  such  car  shall  become  defective  while  being 
used,  it  may  be  hauled  from  the  place  where  such  equipment 
was  first  discovered  to  be  defective  or  insecure  to  the  nearest 
available  point  where  the  car  can  be  repaired,  without  incurring 
liability  for  the  penalties  imposed,  provided  such  movement  is 


100  SAFETY  APPLIANCE  ACTS. 


necessary  to  make  the  repairs  and  such  repairs  could  not  be 
made  except  at  such  repair  point. — Cushman,  D,  J. 
But  see  Siegel  v.  New  York  Central  &  H.  R.  R.  Co.,  178  Fed.,  873. 

— (b).  And  must  show  that  the  defect  to  be  repaired  was  of  such  a 
nature  that  it  could  not  have  been  repaired  at  the  point  of  its 
discovery. 
Chicago,  B.  &  Q.  Ry.  Co.  v.  U.  S.,  211  Fed.,  12. 

Circuit  Court  of  Appeals,  8th  Circuit,  November  28,  1913. 
It  is  quite  clear,  therefore,  that  the  companjr  is  not  pro- 
tected by  the  proviso  upon  which  it  relies.  That  is  so  for  two 
reasons:  First,  the  defect  was  of  a  character  that  could  have 
been  suppUed  in  the  Twelfth  Street  yard.  It  consisted  of  a 
small  clevis  which  had  falleu  out  of  the  coupling  appliance. 
This  could  have  been  suppUed  as  well  in  one  yard  as  the  other, 
and  a  car  can  be  moved  for  purposes  of  repair  under  the  proviso 
only  when  such  a  movement  is  necessary;  that  is,  when  the 
repair  is  of  a  character  which  requires  the  taking  of  the  car  to 
some  particular  point.  Second,  the  movement  which  is  per- 
mitted must  be  for  the  purpose  of  making  repairs,  and  the  evi- 
dence showed  that  the  movement  complained  of  was  not  of  that 
character. — Amidon,  D.  J.,  p.  15. 

— (c).  The  necessity  of  a  movement  for  the  purpose  of  repair  is  gen- 
erally a  question  for  the  jury. 
Galveston,  H.  cfc  S.  A.  Ry.  Co.  v.  U.  S.,  199  Fed.,  891. 

Circuit  Court  of  Appeals,  5th  Circuit,  October  7,1912. 

The  question  in  each  case  depends  upon  whether  there  is 
shown  to  exist  a  reasonable  necessity  for  moving  the  train  to 
accomplish  the  repairs,  and  this  is,  ordinarLl}^,  properly  deter- 
minable by  a  jury.  It  is  true  the  facts  in  tliis  case  are  undis- 
puted, but  an  inference  is  required  to  be  drawn  from  them,  viz. 
whether  they  constituted  the  reasonable  necessity  demanded  by 
the  statute,  or  whether  the  carrier  should  have  sent  a  mechanic 
from  Sanderson  to  Longfellow  to  repair  the  air  pump,  or  sent  the 
disabled  engine  to  Sanderson  for  that  purpose,  to  be  returned  to 
Longfellow  to  take  in  the  train  with  air  power,  or  sent  a  relief 
engine  to  Sanderson  for  that  purpose,  instead  of  hauling  the  train 
to  Sanderson  with  the  disabled  engine  by  hand  brakes. — Grubby 
D.  J.  [concurring],  p.  897. 

6.  The  proviso  in  the  Act  of  1910  does  not  permit  the  hauling  of  defect- 
ive cars  by  means  of  chains  instead  of  drawbars,  in  revenue  trains 
or  in  association  with  other  cars  commercially  used,  unless  such 
defective  cars  contain  live  stock  or  perishable  freight. 
TJ.  S.  V.  Northern  Paciiic  Ry.  Co.,  [unreported]. 

District  Court,  Western  District  of  vYashington,  Dec.  6,  1913. 
The  question,  then,  in  this  case,  if  you  find  from  the  evi- 
dence, if  you  believe  from  the  evidence,  that  those  two  cars 
mentioned  in  the  first  two  causes  of  action  were  hauled  from 
Auburn;  that  when  they  left  Auburn  they  were  using  chains 
instead  of  drawbars,  and  that  there  was  room  on  the  tracks  there 
at  Auburn  to  switch  them  out,  then  there  is  no  excuse  for  their 
being  used  by  the  defendant  company,  unless  being  used  to 
transport  either  live  stock  or  perishables.     *    *    * 


EXCEPTIONS.  ••';  \  '■;  ,      \1  ''/  101 


But  it  is  also  provided  in  said  statute  that  the  said  defective 
equipment  shall  not  be  hauled  by  means  of  chains  instead  of 
drawbars,  in  revenue  trains  or  in  association  with  other  cars  that 
are  commercially  used,  unless  such  defective  cars  contain  live 
stock  or  perishable  freight.     *     *     * 

If  the  defendant  on  May  20,  1912,  hauled  Northern  Pacific 
cars  55653  and  36182  from  Auburn  in  a  revenue  train  by  means 
of  chains  instead  of  drawbars,  it  can  not  be  excused  thereby 
because  it  could  not  have  made  the  repairs  at  Auburn  unless,  as 
I  have  instructed  you,  the  cars  were  bemg  used  to  haul  live  stock 
or  perishables,  and  providing  there  were  means  at  Auburn  for 
cutting  these  cars  out  of  the  train  and  leaving  them  there  on 
storage  tracks  or  switches. — Cushman,  D.  J. 
See  also  Z7.  S.  v.  AtcUson,  T.  cfc  S.  F.  By.  Co.,  212  Fed.,  1000. 

7.  The  proviso  in  the  Act  of  1910  has  no  retrospective  application  to 
a  violation  of  the  Acts  as  previously  amended. 

U.  S.  V.  Colorado  Midland  Ry.  Co.,  202  Fed.,  732. 

Circuit  Court  of  Appeals,  8th  Circuit,  December  21,  1912. 

It  is  an  indisputable  canon  of  construction  that  unless  the 
intention  of  the  legislative  body  that  a  law  should  operate  ret- 
rospectively is  clear,  it  should  not  be  given  that  effect. 

There  is  no  provision  or  term  in  this  Act  which  expresses  any 
intention  of  the  Congress  to  release  offenders  who  prior  to  ite 
passage  had  found  and  hauled  cars  with  defective  or  insecure 
equipment  in  the  manner  described  in  the  proviso  of  section  4 
from  the  liabilities  for  penalties  which  they  had  admittedly 
incurred  by  such  acts  under  the  earlier  Safety  Appliance  Acts. 
On  the  other  hand,  the  proviso  of  section  4  and  the  other  pro- 
visions of  the  Act  of  1910  relating  to  this  subject  use  expressions 
which  either  customarily  or  naturally  refer  to  the  future.  The 
proviso  reads  that  a  car  whose  proper  equipment  has  become 
defective  or  insecure  ''may  be  hauled"  to  the  nearest  available 
repair  point  without  liability  for  the  penalties  imposed  by  the 
earlier  Safety  Appliance  Acts  and  by  that  Act.  The  Act  speaks 
at  the  time  of  its  passage.  This  provision  means  that  after  that 
time,  after  the  passage  of  the  Act,  a  car  may  be  hauled  without 
liability,  and  under  tlie  rule  that  the  expression  of  one  excludes 
other  like  times  or  conditions  this  provision  excludes  the  thought 
that  at  any  previous  time  a  car  could  have  been  so  hauled  with- 
out liability  for  the  penalties.  There  is  nothing  in  the  Act  to 
indicate  that  it  was  the  purpose  of  Congress  to  release  offenders 
from  liabilities  already  incurred.  Its  purpose  appears  to  have 
been  to  permit  common  carriers  to  avoid,  possible  liabilities  in 
the  future,  and  upon  a  consideration  of  its  purpose,  its  terms, 
and  its  provisions  the  conclusion  is  that  the  proviso  of  section  4 
of  the  Act  of  April  14,  1910,  is  inapplicable  to  violations  of  the 
Safety  Appliance  Acts  prior  to  its  passage,  and  that  the  Act  did 
not  release  offenders  who  had  hauled  cars  with  defective  or  inse- 
cure equipment  in  the  manner  described  in  the  proviso  of  section 
4  from  liabilities  for  penalties  incurred  by  such  previous  viola- 
tions of  the  earlier  Safetv  Appliance  Acts. — Sanborn,  C.  J.,  pp. 
734-735. 
But  see  Galveston,  E.  ck  S.  A.  Ry.  Co.  v.  Z7.  S.,  199  Fed.,  891. 


Part  II.  THE  HOURS  OF  SERVICE  ACT. 

A.  NATURE  AND  PURPOSE  OF  THE  ACT,  106 ; 

B.  CONSTRUCTION  AND  INTERPRETATION  OF  THE   ACT,  108 

C.  SCOPE  OF  THE  ACT,  120; 

D.  EXCEPTIONS  TO  THE  APPLICATION  OF  THE  ACT,  169; 

E.  CARRIERS'  HOURS  OF  SERVICE  REPORTS,  173. 

A.  NATURE  AND  PURPOSE  OF  THE  ACT. 

1.  The  Act  is— 

(a)  Civil,  106; 

(b)  Remedial,  106; 

2.  Purpose  of  tlie  Act,  106. 

B.  CONSTRUCTION  AND  INTERPRETATION  OF  THE  ACT. 

1.  Tlie  Act  is  constitutional,  108; 

(a)  The  classification  of  operators  in  the  Act  is  not  unconstitutional,  109; 

(b)  The  Act  is  not  invalid  on  account  of  ambiguity,  110; 

(c)  The  Order  of  the  Interstate  Commerce  Commission,  requiring  carriers 
subject  to  the  Act  to  report  all  instances  of  excess  service  occurring  on  their 
respective  lines,  is  not  invalid  as  being  repugnant  to  the  Fourth  and  Filth 
Amendments  to  the  Constitution  of  the  United  States,  111. 

2.  The  liability  of  carriers  subject  to  the  Act,  in  cases  to  which  the  Act  applies, 

is  absolute.  111 : 

(a)  And  neither  the  lack  of  actual  contemporaneous  knowledge  on  the  part  of 
a  carrier  that  the  Act  is  being  violated,  nor  its  previous  instructions  to  the 
contrary,  is  a  defense  to  a  prosecution  under  the  Act,  113 ; 

(b)  The  exercise  of  discretion  on  the  part  of  an  employee,  in  continuing  on 
duty  in  excess  of  16  hours,  under  the  assumption  that  he  can  reach  a  terminal 
within  the  statutory  period,  does  not  supersede  the  mandate  of  the  law,  114. 

(c)  The  word  "permit,"  as  used  in  the  Act,  means  'a  failure  to  prohibit  by 
one  who  has  the  power  and  authority  to  do  so,"  116, 

(d)  Carriers  subject  to  the  Act  are  chargeable  with  knowledge  of  the  acts  of 
their  officers  and  agents,  116; 

(i)  And  the  expression  'all  its  officers  and  agents,"  as  used  in  the  Act,  is  not 
restricted  to  the  general  officers  or  agents  of  a  carrier,  116. 

3.  The  Act,  being  remedial,  should  be  liberally  construed,  116; 

4.  Proceedings  on  behalf  of  the  Government  for  the  recovery  of  the  penalties  pro- 

vided by  the  Act  are  civil  actions,  116; 
6.  The  Act  is  analogous  to  the  Safety  Appliance  Acts,  116; 

(a)  But  is  distinguishable  from  the  Employers'  Liability  Acts,  116; 

(b)  And  from  the  28-Hour  Law,  116 ; 

(c)  Violations  of  the  Hours  of   Service  Act:  HELD  more  serious  than  those 
of  the  Safety  Appliance  Act  and  of  the  28-Hour  Law,  117. 

6.  A  substantial  violation  of  the  Act  should  never  be  satisfied  by  a  merely  nominal 
penalty,  118; 

(a)  The  Act  prescribes  a  separate  penalty  for  each  and  every  employee  who 
remains  on  duty  in  excess  of  the  permitted  periods,  118; 

(b)  But  the  amounts  of  such  penalties  are  determinable  by  the  courts,  119. 
102 


CONSTRUCTION  AND  INTERPRETATION— SCOPE.     103 


7.  Fatigue  is  as  truly  a  physical  cause  of  railroad  accidents  as  broken  rails  and 
open  switches,  119. 

8.  The  inability  of  carriers  to  compel  employees  to  rest  during  their  intermissions 
from  actual  service  is  a  remote  contingency,  120. 

9.  A  carrier  can  not  escape  liability  to  a  passenger  for  laying  off  a  train  and  con- 
sequentially delaying  his  arrival  at  his  destination,  on  the  theory  that  such  a 
course  may  have  been  necessary  in  order  to  avoid  a  violation  of  the  Act,  if  the 
delay  responsible  for  the  situation  was  attributable  to  its  own  negligence,  120. 

C.  SCOPE  OF  THE  ACT. 

1.  Carriers  subject  to  the  Act,  120: 

(a)  "Common  carrier"  defined,  121; 

(b)  "Railroad,"  as  used  in  the  Act,  defined,  121; 

2.  The  receiver  of  a  railroad  company,  as  such,  is  a  common  carrier  within  the 

purview  of  the  Act,  121 ; 

3.  Employees  subject  to  the  Act,  122. 

(a)  A  fireman  or  other  employee  subject  to  the  Act,  while  engaged  in  watching 
an  engine  is  "connected  with  the  movement' '  of  a  train  within  the  purview  of 
the  Act,  131 ; 

(b)  "  Other  employee, ' '  as  used  in  the  proviso  in  section  2  of  the  Act,  defined,  123. 

4.  Limitations  of  service,  124. 

5.  "On  duty,"  and  "off  duty,"  as  used  in  the  Act,  defined,  124: 

(a)  Employees  while  deadheading  on  freight  or  passenger  trains,  if  relieved 
from  all  responsibility  in  connection  with  the  movement  of  such  trains,  are 
not  on  duty  within  the  purview  of  the  Act,  126 ; 

(b)  The  service  of  an  employee  subject  to  the  Act,  preliminary  or  supplemen- 
tal to  his  regular  duties,  is  to  be  computed  in  his  period  on  duty,  126; 

(c)  The  application  of  the  Act  to  employees  otherwise  within  its  terms  is  not 
to  be  evaded  by  a  commingling  of  their  duties  with  respect  to  interstate  and 
intrastate  operations,  128; 

(d)  An  employee  subject  to  the  Act  may  not  engage  in  any  railroad  service, 
howsoever  unconnected  with  the  movement  of  any  train,  if  the  total  time 
devoted  to  such  service  and  to  his  regular  duties  exceeds  the  periods  of 
service  permitted  by  the  statute,  130; 

(i)  A  fireman  or  other  employee  subject  to  the  Act,  while  engaged  in  watching 
an  engine,  is  on  duty  within  the  purview  of  the  Act,  131 ; 

(a)  And  it  is  immaterial  whether  such  service  as  engine  watchman 
precedes,  intervenes,  or  succeeds  the  service  as  fireman  or  as  other 
employee  so  subject  to  the  Act,  136; 

(b)  Duties  of  an  engine  watchman  defined,  137: 

(e)  The  words  "consecutive"  and  "continuous,"  as  used  in  the  Act,  are  not 
restricted  to  unbroken  intervals  of  time,  137; 

(i)  A  respite  from  duty  so  brief,  or  granted  under  such  circumstances,  as  to 
preclude  the  rest  and  recuperation  contemplated  by  the  Act,  even  though 
for  a  definite  and  predetermined  interval,  does  not  break  the  continuity  of 
service,  138; 

(ii)  And  a  respite  from  duty,  even  for  a  reasonably  extended  interval,  does 
not  break  the  continuity  of  service,  unless  the  duration  of  such  interval 
is  definitely  anticipated  and  predetermined  at  its  inception,  140; 

(ill)  Such  a  release  from  service,  in  order  to  suspend  the  operation  of  the 
Act,  must  be  granted  in  good  faith,  at  a  time  and  place  and  under  circum- 
stances that  permit  of  rest  and  recuperation ;  must  be  for  a  definite  and  sub- 
stantial interval  of  time ;  and  must  be  predetermined  at  the  inception  of  such 
period,  142. 


104  HOURS  OF  SERVICE  ACT. 


6.  The  service  of  operators  or  other  employees  handling  train  orders  in  continu- 
ously operated  offices  is  limited  by  the  Act  to  9  hours  in  a  24-hour  period; 
that  of  such  employees  in  offices  operated  only  during  the  daytime,  to  13  hours 
out  of  24;  except  in  cases  of  emergency,  when  the  service  of  either  class  of 
employees  may  be  extended  4  hours  on  not  exceeding  3  days  in  any  week,  143 : 
(a)  "Places,"  as  used  in  the  Act,  defined,  143. 

7.  The  proviso  in  section  2  of  the  Act  applies  to  all  offices  in  which  train  orders  are 
handled  affecting  the  movement  of  interstate  traffic,  irrespective  of  the  number 
or  the  frequency  of  such  orders,  144: 

(a)  The  term  "orders,"  as  used  in  the  Act,  comprehends  every  communication 
of  information  or  instruction  relative  to  the  movement  of  any  train,  146. 

8.  The  classification  of  an  office  as  "continuously  operated"  or  "operated  only 
during  the  daytime"  is  determined  by  the  length  of  time  it  is  kept  open*  and  not 
by  the  character  of  the  service  therein  performed ;  provided  only  that  such  serv- 
ice comprehends  the  handling  of  train  orders  as  occasion  may  require,  147: 

(a)  An  office  is  continuously  operated,  within  the  purview  of  the  Act,  if  it  is 
kept  open  for  such  a  number  of  hours  in  the  aggregate  as  necessarily  to  include 
a  material  or  substantial  portion  of  the  night,  147; 

(b)  Trifling  interruptions  do  not  break  the  continuity  of  operation  of  an  office 
otherwise  continuously  operated,  149. 

9.  "Period,"  as  used  in  the  Act,  defined,  160. 

(a)  An  operator  employed  for  6  hours,  and  then,  after  an  interval  of  3,  for  an 
additional  period  of  3  hours,  is  not  on  duty  for  a  longer  period  than  9  hours 
in  a  24-hour  period,  161. 

(b)  But  if  such  an  employee  remains  on  duty  in  a  continuously  operated  office 
for  more  than  9  hours  in  a  24-hour  period,  it  is  immaterial  that  such  service 
may  not  be  continuous,  162. 

10.  Towermen  and  switch  tenders  who  use  the  telephone  for  the  communication 
of  information  or  instructions  relative  to  the  movement  of  trains,  are  subject 
to  the  proviso  in  section  2  of  the  Act,  153. 

11.  The  service  of  an  operator  at  a  local  station  is  as  clearly  within  the  purpose  of 
the  Act  as  is  that  of  a  similar  employee  in  a  train-dispatcher's  office,  168. 

D.  EXCEPTIONS  TO  THE  APPLICATION  OF  THE  ACT. 

1.  The  proviso  in  section  2,  169 : 

(a)  "Emergency,"  as  used  in  the  Act,  defined,  169. 

(b)  "Week,"  as  used  in  the  Act,  defined,  159. 

2.  Provisos  in  section  3,  160: 

(a)  The  first  proviso  in  section  3  of  the  Act  is  applicable  to  the  service  of  opera- 
tors and  other  employees  handling  train  orders  no  less  than  to  that  of  em- 
ployees in  train  service,  160. 

(i)  And  where  an  operator  remained  on  duty  for  a  period  of  7  hours  in  excess 
of  his  normally  permitted  service,  on  account  of  a  wreck  resulting  from 
an  unavoidable  cause:  HELD,  that  such  service  was  not  limited  to  the  4 
additional  hours  permitted  in  cases  of  emergency,  160. 

(b)  "Casualty,"  defined,  160; 

(c)  "Unavoidable  accident,"  defined,  160; 

(d)  "Act  of  God,"  defined,  162; 

(i)  An  act  of  God  will  not  excuse  a  carrier  from  the  liability  imposed  upon 
it  by  the  law  unless  it  is  shown  that  the  results  thereof  could  not  have 
been  prevented  by  any  foresight,  pains,  or  care  reasonably  to  have  been 
expected  in  the  premises,  163; 

(e)  It  is  the  duty  of  carriers  subject  to  the  Act  to  provide  appropriate  stopping 
places  along  their  lines  where  employees  may  rest,  163 ; 


EXCEPTIONS— HOURS  OF  SERVICE  REPORTS.  105 


(f)  "Terminal,"  as  used  in  the  Act,  defined,  163; 

(g)  The  occurrence,  after  a  crew  has  left  a  terminal,  of  a  casualty,  an  unavoid- 
able accident  or  an  act  of  God,  resulting  in  the  detention  of  the  crew  on  duty 
in  excess  of  16  hours,  suspends  the  operation  of  the  statute  for  the  given 
trip,  165. 

3.  The  excess  service  of  employees  subject  to  the  Act  is  not  to  be  excused  by 
the  occurrence  of  conditions  ordinarily  to  be  expected  in  the  operation  of 
trains,  168: 

(a)  Broken  rails,  169; 

(b)  Cleaning  fires,  169; 

(c)  Congestion  of  traffic,  169; 

(d)  Delay  in  starting  trains,  169 ; 

(e)  Engine  failures  due  to  mechanical  defects,  169; 

(f)  Frost  on  rails  and  heavy  tonnage,  necessitating  doubling,  169; 

(g)  Hot  boxes,  169; 

(h)  Injectors  failing  on  account  of  insufficiency  or  quality  of  water,  169; 

(i)  Intermissions  for  meals,  170; 

(j)  Meeting  or  passing  trains,  170; 

(k)  Poor  coal,  170; 

(1)  PuUed-out  or  broken  drawbars,  170; 

(m)  Running  for  or  taking  water,  170; 

(n)  Unnecessary  hauling  of  defective  cars  by  means  of  chains  instead  of  draw- 
bars, 170; 

(o)  Waiting  for  a  helper  engine,  171 ; 

(p)  Waiting  for  orders,  171; 

(q)  Wrecks,  if  preventable  by  the  exercise  of  diligence  and  foresight,  171; 

(r)  But  excessive  heat  in  certain  circumstances:  HELD  to  be  an  excuse 
within  the  purview  of  the  Act,  171 ; 

(s)  And,  while  the  sudden  illness  of  an  operator  will  not  in  all  cases  justify 
the  retention  of  another  employee  on  duty  in  excess  of  the  permitted  periods, 
such  illness,  coupled  with  the  inability  of  the  carrier  to  procure  a  relief  oper- 
ator, may,  in  certain  circumstances,  constitute  an  emergency  within  the 
purview  of  the  Act,  172; 

(t)  But  economical  reasons  alone  can  never  justify  a  violation  of  the  Act,  172. 
E.  CARRIERS'  HOURS  OF  SERVICE  REPORTS. 

1.  The  Interstate  Commerce  Commission  is  authorized  by  section  20  of  the  Act  to 
regulate  commerce  to  require  all  carriers  subject  to  the  Hours  of  Service  Act  to 
report  all  instances  of  excess  service  occurring  on  their  respective  lines.  173; 
(a)  And  a  carrier  is  not  excused  from  the  necessity  of  filing  such  reports  by  the 

failure  of  the  Commission  to  have  included  with  its  Order  of  June  28,  1911,  as 
served  upon  such  carrier,  the  forms  therein  described,  176. 

2.  It  is  not  within  the  province  of  a  court  to  impose  upon  a  carrier,  for  its  violation 
of  the  Commission's  Order  requiring  reports,  a  smaller  penalty  than  that  pre- 
scribed by  section  20  of  the  Act  to  regulate  commerce — $100  per  day  for  each  and 
every  day  such  carrier  shall  have  continued  in  default,  176. 

3.  The  Orders  of  the  Commission  requiring  reports  of  excess  service  are  not  in 
contravention  of  the  Fourth  and  Fifth  Amendments  to  the  Constitution  of  the 
United  States,  111. 


106  HOURS  OF  SERVICE  ACT. 


A.  NATURE  AND  PURPOSE  OF  THE  ACT. 

1.  The  Act  is — 

— (a).  Civil:  See  Item  B-4,  p.  116,  post 

— (b).  Remedial: 

U.  S.  V.  Kansas  City  Southern  By.  Co.,  189  Fed.,  471;  U.  S.  v. 
Chicago,  M.  &  P.  S.  By.  Co.,  197  Fed.,  624;  U.  S.  v.  Kansas 
City  Southern  By.  Co.,  202  Fed.,  828;  U.  S.  v.  Great  Northern  By. 
Co.,  206  Fed.,  838;  U.  S.  v.  Missouri  Pacific  By.  Co.,  206  Fed., 
847;  U.  S.  V.  Southern  Pacific  Co.,  209  Fed.,  562;  U.  S.  v.  Atlantic 
Coast  Line  B.  Co.,  211  Fed.,  897;  San  Pedro,  L.  A.  c&  S.  L.  B. 
Co.  V.  U.  S.,  213  Fed.,  326;  Osborne's  Adm'r.  v.  Cincinnati, 
N.  0.  &  T.  P.  By.  Co.,  164  S.  W.,  818;  V.  S.  v.  Grand  Bapids 
db  I.  By  Co.,  D.  C,  W.  D.  Michigan,  Dec.  31,  1912,  Sessions, 
D.  J.  [unreported];  U.  S.  v.  Missouri  Pacific  By.  Co.,  D.  C, 
W.  D.  Missouri,  May  8,  1913,  Van  Valkenburgh,  D.  J.  [unreport- 
ed]; U.  S.  V.  Delaware,  L.  cfc  W.  B.  Co.,  D.  C,  W.  D.  New  York, 
May  22,  1913,  Hazel,  D.  J.  [unreported];  U.  S.  v.  Southern 
By.  Co.,  D.  C,  W.  D.  South  Carolina,  Oct.  30,  1913,  Smith, 
D.  J.  [unreported]. 

2.  Purpose  of  the  Act. 

U.  S.  V.  Atlantic  Coast  Line  B.  Co.,  211  Fed.,  897. 

Circuit  Court  of  Appeals,  4th  Circuit,  February  3,  1914. 

Obviously   that   purpose   was    to   promote    the   safety    of 
employees  and   the   traveling  pubhc  by  prohibiting  hours   of 
service    which    presumably   result   in   impaired    efficiency   for 
discharging  their  important  duties. — Knapp,  C.  J.,  p.  900. 
U.  S.  V.  Kansas  City  Southern  By.  Co.,  202  Fed.,  828. 

Circuit  Court  of  Appeals,  8th  Circuit,  January  24,  1913. 
This  law  was  passed  to  meet  a  condition  of  danger  incidental 
to  the  working  of  railroad  employees  so  excessively  as  to  impair 
their  strength  and  alertness. —  Van   Valkenburgh,  D.  J.,  p.  832. 
San  Pedro,  L.  A.  &  S.  L.  B.  Co.  v.  U.  S.,  213  Fed.,  326. 
Circuit  Court  of  Appeals,  8th  Circuit,  March  27,  1914. 

In  tliis  legislation  Congress  had  in  view  the  many  serious 
railroad  accidents  caused  by  the  unfitness  for  duty  of  men 
engaged  in  or  having  to  do  with  the  movements  of  trains,  who 
had  endured  excessive  periods  of  continuous,  unbroken  service 
without  intervals  for  rest.  The  remedy  adopted  was  by  Hmiting 
the  maximum  of  the  hours  of  service  and  the  minimum  for  the 
intervals  between.  It  was  thought  futile  to  attempt  to  control 
the  employees  in  their  use  of  their  off  time;  therefore,  as  being 
more  practical  and  efl&cient,  the  command  was  laid  upon  and 
confined  to  those  who  gave  them  employment  in  their  regular 
occupations. — HooJc,  C.  J.,  p.  328. 
U.  S.  V.  Chicago,   M.  &  P.  S.  By.  Co.,  197  Fed.,  624. 

District  Court,  Eastern  District  of  Washington,  April  10,  1912. 

The  purpose  of  the  statute,  as  indicated  by  its  title,  is  to 

promote  tlie  safety  of  employees  and  travelers  upon  railroads  by 


NATURE  AND  PURPOSE.  107 


limiting  the  hours  of  labor  of  those  who  are  in  control  of  dangerous 
agencies,  lest  by  excessive  periods  of  duty  tliey  become  fatigued 
and  indifferent  and  cause  accidents  leading  to  injuries  and  de- 
struction of  life.  [New  York  v.  Erie  R.  Co.,  198  N.  Y.,  369.]— 
Rudkin,  D.  J.,  p.  627. 
V.  S.  V.  Yazoo  &  M.  V.  R.  Co.,  203  Fed.,  159. 

District  Court,  Western  District  of  Tennessee,  Feb.  22,  1913. 
The  purpose  of  this  legislation  is  the  protection  of  the  lives 
of  employees  of  railroad  companies  and  also  the  lives  and  prop- 
erty entrusted  to  the  railroads  as  common  carriers.  It  recognizes 
that  there  is  a  limit  to  human  endurance,  and  that  hours  of  rest 
and  recreation  are  needful  to  the  health  and  efficiency  of  men 
engaged  in  the  hazardous  work  of  railroading.  The  benefit  it  is 
intended  to  confer  is  to  better  enable  employees  to  serve  their 
employers,  and  to  promote  the  needs  of  commerce,  and  also  to 
promote  the  safety  of  travelers  upon  railroads.  The  limiting 
of  hours  of  labor  of  those  who  are  in  control  of  dangerous  agen- 
cies, it  is  believed,  will  relieve  the  employees  of  overfatigue  and 
resulting  indifference,  and  thus  avert  accidents  which  lead  to 
injuries  and  destruction  of  life  and  property.  Such  purpose 
could  scarcely  be  said  to  be  of  less  importance  than  making  of 
annual  reports,  showing  in  detail  the  amount  of  capital  stock 
issued,  the  amounts  paid  therefor,  the  dividends  paid,  the  surplus 
funds,  etc.,  unless  we  have  unhappily  fallen  upon  times  when 
it  is  of  greater  moment  to  enact  and  enforce  laws,  the  purpose  of 
which  is  to  safeguard  the  financial  interests  of  the  public  and 
the  carrier,  than  it  is  to  enact  and  enforce  laws  the  purpose  of 
which  is  to  protect  the  lives  and  limbs  of  human  beings.  To  this 
latter  doctrine  I  can  not  subscribe,  and  am  therefore  unable  to 
agree  with  the  contention  of  the  defendant.  The  provision  of 
the  Act  under  consideration  indicates  that  it  was  the  purpose  of 
Congress  to  prohibit  common  carriers  from  subordinating  the 
welfare  of  their  employees  or  passengers  aboard  their  trains, 
either  in  health,  life,  or  limb,  to  the  interest  of  earnings  or  divi- 
dend sheets.— i/cOaZZ,  D.  J.,  pp.  161-162. 
U.  S.  y.  Missouri,  K.  &  T.  Ry,  Co.,  208  Fed.,  957.' 

District  Court,  District  of  Kansas,  January  13,  1913. 

In  the  passage  of  the  Act  in  question  the  Congress  had  in 
view  the  safety  of  both  those  traveling  on  and  those  engaged  in 
operating  interstate  railway  trains,  to  be  accomplished  by  afford- 
ing protection  against  the  uncertain  working  of  the  minds  of  its 
employees  overtaxed  by  long-continued  service,  loss  of  sleep, 
etc.— Pollock,  D.  J.,  pp.  958-959. 
St.  Louis,  I.  M.  cfe  S.  Ry.  Co.  v.  McWhirter,  140  S.  W.,  672. 

Court  of  Appeals  of  Kentucky,  November  17,  1911. 

In  conclusion,  we  are  moved  to  say  that  the  salutary  object 
designed  by  the  enactment  of  the  statute,  su^ra,  would,  in  our 
opinion,  be  defeated  if  we  should  hold  its  provisions  inapplicable 
to  a  case  like  the  one  at  bar.  Its  aim  is  the  protection  of  the 
lives  of  employees  of  railroad  companies,  and  also  the  lives  and 
property  intrusted  to  the  railroads  as  common  carriers.     It  rec- 


108  HOURS  OF  SERVICE  ACT. 


o^nizes  that  there  is  a  limit  to  human  endurance,  and  that  hours 
01  rest  and  recreation,  as  well  as  the  use  of  good  machinery  and 
appliances,  are  neediul  to  the  health  and  safety  of  men  engaged 
in  the  hazardous  work  of  railroading,  and  that  the  benefit  it  is 
intended  to  confer  will  better  enable  them  to  serve  their  employ- 
ers and  promote  the  ends  of  commerce.  The  application  of  the 
provisions  ot  the  statute  may  sometimes  bear  harshly  upon  an 
offending  railroad  company,  but  on  the  whole  their  just  enforce- 
ment, in  all  proper  cases,  is  bound  to  be  promotive  of  the  public 
welfare. — Settle,  J.,  p.  679. 
V.  S.  V.  Ilinneapolis,  St  P.  cf?  S.  S.  M.  Ry.  Co.  [unreported]. 
District  Court,  District  of  North  Dakota,  January  21,  1913. 
The  statute  has  behind  it  the  purpose  to  reduce  the  appalling 
record  of  death  and  injury  caused  by  American  railroads.  The 
yearly  statistics  on  this  subject  leave  no  room  to  doubt  the  im- 
perative necessity  for  the  law,  and  furnish  ample  justification  for 
its  rigid  enforcement. — Amidon,  D.  J. 

B.  CONSTRUCTION  AND  INTERPRETATION  OF  THE  ACT. 

1.  The  Act  is  constitntional : 

Baltimore  cfc  0.  R.  Co.  v.  7.  C.  C,  221  U.  S.,  612. 
Supreme  Court,  May  29,  1911. 

And  thus,  many  employees  who  have  to  do  with  the  move- 
ment of  trains  in  interstate  transportation  are,  by  virtue  of 
practical  necessity,  also  employed  m  intrastate  transportation. 

This  consideration,  however,  lends  no  support  to  the  con- 
tention that  the  statute  is  invalid.  For  there  can  not  be  denied 
to  Congress  the  effective  exercise  of  its  constitutional  authority. 
By  virtue  of  its  power  to  regulate  interstate  and  foreign  com- 
merce, Congress  may  enact  laws  for  the  safeguarding  of  the 
persons  and  property  that  are  transported  in  that  commerce  and 
of  those  who  are  employed  in  transporting  them.  [Johnson  v. 
SoutJiern  Paciiic  Company,  196  U.  S.,  1;  Adair  v.  U.  S.,  208 
U.  S.,  177  r  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Taylor,  210  U.  S., 
281 ;  Chicago,  B.  <&  Q.  Ry.  Co:  v.  V.  S.,  220  U.  S.,  559.1  The 
fundamental  question  here  is  whether  a  restriction  upon  the 
hours  of  labor  of  employees  who  are  connected  with  the  move- 
ment of  trains  in  interstate  transportation  is  comprehended 
within  this  sphere  of  authorized  legislation.  This  question 
admits  of  but  one  answer.  The  length  of  hours  of  service  has 
direct  relation  to  the  efficiency  of  the  human  agencies  upon 
which  protection  to  life  and  property  necessarily  depends.  This 
has  been  repeatedly  emphasized  in  official  reports  of  the  Inter- 
state Commerce  Commission,  and  is  a  matter  so  plain  as  to 
require  no  elaboration.  In  its  power  suitably  to  provide  for  the 
safety  of  employees  and  travelers.  Congress  was  not  limited  to 
the  enactment  of  laws  relating  to  mechanical  appfiances,  but  it 
was  also  competent  to  consider,  and  to  endeavor  to  reduce,  the 
dangers  incident  to  the  strain  of  excessive  hours  of  duty  on 
the  part  of  engineers,  conductors,  train  dispatchers,  telegraphers. 


CONSTRUCTION  AND  INTERPRETATION.  109 


and  other  persons  embraced  within  the  class  defined  by  the  Act. 
And  in  imposing  restrictions  having  reasonable  relation  to  this 
end  there  is  no  interference  with  liberty  of  contract  as  guaranteed 
by  the  Constitution.  [Ohicago,  B.  &  Q.  Ry.  Co.  v.  McGuire, 
219  U.  S.,  549.]     *     *     * 

It  is  said  that  the  words  ''except  in  case  of  emergency'' 
make  the  application  of  the  Act  so  uncertain  as  to  destroy  its 
validity.  But  this  argument  in  substance  denies  to  the  legis- 
lature the  power  to  use  a  generic  description,  and  if  pressed  to 
its  logical  conclusion  would  practically  nullify  the  legislative 
authority  by  making  it  essential  that  legislation  should  define 
without  the  use  of  generic  terms,  all  the  specific  instances  to  be 
brought  within  it.  In  a  legal  sense  there  is  no .  uncertainty. 
Congress,  by  an  appropriate  description  of  an  exceptional  class, 
has  estabhshed  a  standard  with  respect  to  which  cases  that 
arise  must  be  adjudged. 

Nor  does  the  contention  gather  strength  from  the  broad 
scope  of  the  proviso  in  section  3,  for  if  the  latter,  in  limiting  the 
effect  of  the  entire  Act,  could  be  said  to  include  everything  that 
may  be  embraced  within  the  term  ''emergency"  as  used  in  sec- 
tion 2,  this  would  be  merely  a  dupHcation  which  would  not 
invalidate  the  Act. — Hughes,  Justice,  pp.  618-619,  620. 
U.  S.  V.  Illinois  Central  R.  Co.,  180  Fed.,  630;  U.  S.  v.  Kansas 
aty  Southern  Ry,  Co.,  189  Fed.,  471;  U.  S.  v.  St.  Louis  S.  W. 
Ry.  Co.  of  Texas,  189  Fed.,  954;  U.  S.  v.  Ramsey,  197  Fed.,  144; 
TJ.  S.  V.  Southern  Pacific  Co.,  209  Fed.,  562;  State  v.  Chicago, 
M.  &  St.  P.  Ry.  Co.,  117  N.  W.,  686;  St.  Louis,  7.  M.  &  S.  Ry. 
Co.  V.  McWhirter,  140  S.  W.,  672;  TJ.  S.  v.  Cleveland,  C.  C.  cSj 
St.  L.  Ry.  Co.,  D.  C,  S.  D.  Ohio,  Dec.  12,  1911,  Hollister,  D.  J. 
[unreported]. 

(a).  The  classification  of  operators  in  the  Act  is  not  nnconstitutional : 

U.  S.  V.  St.  Louis  S.  W.  Ry.  Co.  of  Texas,  189  Fed.,  954. 

District  Court,  Western  District  of  Texas,  August  16,  1911. 
But  it  is  insisted  by  counsel  for  the  defendant  that  the  classi- 
fication of  the  telegraph  operators  is  arbitrary,  rendering  the 
Act  void,  since  it  discriminates  between  operators  engaged 
in  stations  that  are  "contiuously  operated  night  and  day"  and 
those  employed  in  stations  that  are  ^'  continuously  oj)erated  only 
during  the  daj^time."  Just  why  the  classification  is  unconsti- 
tutional it  is  difficult  for  the  court  to  conceive.  And  it  is  still 
more  strange  that  the  Supreme  Court  in  construing  the  Act  in 
its  entirety,  should  have  overlooked  what  counsel  appear  to 
regard  as  so  vital  an  objection  to  its  constitutionaHty.  The  pro- 
viso, referring  to  operators,  train  dispatchers,  etc.,  was  consid- 
ered by  the  court,  and  there  is  no  intimation  in  the  opinion  that 
the  classification  is  either  unjust  or  arbitrary.  Where  Congress 
has  power  to  legislate  in  reference  to  the  hours  of  labor  of  em- 
ployees, no  hard  and  fast  rule  of  classification  may  for  all  cases 
be  prescribed.  Thus  it  was  said  by  the  court  in  Magoun  v.  III. 
'  T.  <&  S.  Banlc,  170  U.  S.,  296:  "There  is  therefore  no  precise 
application  of  the  rule  of  reasonableness  of  classification,  and 


110  HOURS  OF  SERVICE  ACT. 


the  rule  of  equality  permits  many  practical  inequalities.  And 
necessarily  so.  In  a  classification  for  governmental  purposes 
there  can  not  be  any  exact  exclusion  or  inclusion  of  persons  and 
things." 

The  objection  of  counsel  that  the  classification  in  the  Act 
provided  is  unreasonable  and  arbitrary,  and  therefore  void,  is 
untenable. —  Maxey,  D.  J.,  p.  961. 

(b) .  The  Act  is  not  invalid  on  account  of  ambiguity : 

V.  S.  V.  St.  Louis  S.   W.  Ry.  Co.  of  Texas,  189  Fed.,  954. 

District  Court,  Western  District  of  Texas,  August  16,  1911. 

It  is  also  urged  by  counsel  for  defendant  that  there  exists  in 
the  provisions  of  the  statute,  respecting  periods  of  time,  such 
uncertainty  and  ambiguity  as,  under  recognized  rules  for  the 
construction  of  penal  statutes,  render  it  void  or  partially  inop- 
erative. In  support  of  this  contention  it  is  said  by  counsel: 
"The  last  clause  of  the  first  paragraph  of  the  Act  reads:  'And  the 
term  employees  as  used  in  this  Act  shaU  be  held  to  mean  persons 
actually  engaged  in  or  connected  with  the  movement  of  any 
train.'  The  second  paragraph  of  the  Act  makes  it  unlawful  for 
a  carrier  to  require  or  permit  'any  employee  subject  to  this  Act 
to  remain  on  duty  for  a  longer  period  than  16  hours  consecu- 
tively.' The  contention  is  that  an  operator,  train  dispatcher,  or 
other  employee,  who  assists  in  receiving,  transmitting,  or  deliver- 
ing orders  pertaining  to  train  movements  is  a  person  'actually 
engaged  in  or  connected  with  the  movement  of  a  train,'  and  as 
such  is  an  employee  within  the  scope  of  the  second  paragraph  of 
the  Act." 

And  it  is  further  said  by  counsel,  using  substantially  their 
own  language:  That  the  effect  of  the  proviso  contained  in  the 
second  paragraph,  restricting  the  employment  of  telegraph  oper- 
ators to  9  and  13  hours,  "is  to  import  an  inconsistency  and 
ambiguity  into  the  meaning  of  the  statute,  and  to  make  it  diffi- 
cult, if  not  impossible,  to  state  with  certainty  which  provision 
of  the  statute  is  applicable  to  the  case  of  operators  and  train 
dispatchers." 

To  the  position  assumed  by  counsel  it  may  be  replied:  (1) 
The  hours  of  service  Act  is  not,  strictly  speaking,  a  penal  statute, 
requiring  the  appficaton  of  the  rules  of  strict  construction,  and 
(2)  a  reasonable  view  of  the  Act  removes  the  difiiculty  in  ascer- 
taining the  clause  applicable  to  operators  and  dispatchers  in 
contradistinction  to  the  clause  which  embraces  other  employees. 
*  *  *  It  wiU  be  observed  that  the  first  part  of  the  section 
refers  to  employees  generally,  subject  to  the  Act,  and  renders  it 
unlawful  for  a  carrier  to  require  or  permit  any  employee  to  be  or 
remain  on  duty  for  a  longer  period  tnan  16  consecutive  hours,  etc. 
The  proviso,  however,  excepts  operators  and  train  dispatchers 
from  the  general  language  thus  employed  and  provides  tor  them 
a  special  rule.  For  reasons  deemed  wise  by  the  Congress  it  was 
thought  that  telegraph  operators  and  train  dispatchers  should 
have  shorter  hours  for  work  and  longer  intervals  of  rest;  and 
hence,  the  provision,  directly  applied  to  them,  that  their  work 
hours  should  be  limited  to  9  and  13,  respectively,  accordingly  as 


CONSTRUCTION  AND  INTERPRETATION.  HI 


thev  might  be  employed  in  stations  continuously  operated  night 
anci  day  or  in  stations  operated  only  during  the  daytime.  Is  there 
any  uncertainty  or  ambiguity  in  the  language  of  the  Act?  It  is 
thought  by  the  court  that  the  langauge  is  too  plain  to  be  misun- 
stood.  The  obscurity  suggested  by  counsel  is  rather  imaginary 
than  real.  The  proviso  of  section  2  relates  solely  to  the  operator, 
train  dispatcher,  or  other  employee  ''who  *  *  *  reports, 
transmits,  receives,  or  delivei*s  orders  ])ertaimng  to  or  affecting 
train  movements,"  while  the  first  part  of  the  section  embraces  afl 
other  employees  subject  to  the  Act. —  Maxey,  D,  /.,  pp.  961-962, 
963. 

(c).  The  Order  of  the  Interstate  Commerce  Commission,  requiring 
carriers  subject  to  the  Act  to  report  all  instances  of  excess  service 
occurring  on  their  respective  lines,  is  not  invalid  as  being  repug- 
nant to  the  Fourth  and  Fifth  Amendments  to  the  Constitution 
of  the  United  States. 
Baltimore  cfe  0.  R.  Co.  v.  /.  C.  C,  221  U.  S.,  612. 
Supreme  Court,  May  29,  1911. 

There  is  the  final  objection  that  to  compel  the  disclosure  by 
these  reports  of  violations  of  the  law  is  contrary  to  the  fourth 
and  fifth  amendments  of  the  Constitution  of  the  United  States. 

The  order  of  the  Commission  is  suitably  specific  and  reason- 
able, and  there  is  not  the  faintest  semblance  of  an  unreasonable 
search  and  seizure.    The  fourth  amendment  has  no  application. 

Nor  can  the  corporation  plead  a  privilege  against  self- 
crimination  under  the  fifth  amendment  [Hale  v.  Henkel,  201 
U.  S.,  74;  Hammond  Packing  Company  v.  Arkansas,  212  U.  S., 
348;  Wilson  v.  U.  S.j  221  U.  S.,  361.]  With  respect  to  its  officers, 
it  would  be  sufficient  to  say  that  the  privilege  guaranteed  to 
them  by  this  amendment  is  a  personal  one  which  can  not  be 
asserted  on  their  behalf  by  the  corporation.  But  the  trans- 
actions to  which  the  required  reports  relate  are  corporate  trans- 
actions subject  to  the  regulating  power  of  Congress.  And,  with 
regard  to  the  keeping  of  suitable  records  of  corporate  administra- 
tion, and  the  making  of  reports  of  corporate  action,  where  these 
are  ordered  by  the  Commission  under  the  authority  of  Congress, 
the  officers  of  the  corporation,  by  virtue  of  the  assumption  of  their 
duties  as  such,  are  bound  by  the  corporate  obligation  and  can 
not  claim  a  personal  privilege  in  hostility  to  the  requirement. — 
Hughes,  Justice,  pp.  622-623. 

2.  The  liability  of  carriers  subject  to  the  Act,  in  cases  to  which  the 
Act  applies,  is  absolute : 

U.  S.  V.  Kansas  City  Southern  By.  Co.,  202  Fed.,  828. 

Circuit  Court  of  Appeals,  8th  Circuit,  January  24,  1913. 
The  Act  under  consideration  does  not  employ  the  words 
"knowingly"  and  "willfully."  The  carrier  is  made  liable  if  it 
requires  or  permits  any  employee  to  be  or  remain  on  duty  in  vio- 
lation of  stated  provisions.  This  case  then  faUs  within  that  class 
where  purposely  doing  a  thing  prohibited  by  statute  may  amount 
to  an  offense,  although  the  act  does  not  involve  turpitude  or  moral 
wrong.     [Armour  Packing  Co.  v.  U.  S.,  153  Fed.,  1;  Id.  v.  Id., 


112  HOURS  OF  SERVICE  ACT. 


209  U.  S.,  56;  Chicago,  St  P.,  M.  &  0.  By.  Co.  v.  U.  8.,  162 
Fed.,  835.]  By  the  terms  of  the  proviso  the  carrier  is  excused 
"where  the  delay  is  the  result  of  a  cause  not  known  *  *  *  at 
the  time  said  employee  left  a  terminal,  and  which  could  not  have 
been  foreseen."  Not  merely  which  was  not  foreseen,  but  which 
could  not  have  been  foreseen.  The  phrase  "by  the  exercise  of 
due  diligence  and  foresight''  is  not  present.  Counsel  argue  that 
by  leaving  out  this  phrase  Congress  mtended  to  limit  the  liability 
of  the  carrier;  that  it  meant  to  imply  that  what  was  not  actually 
foreknown  could  not,  in  contemplation  of  this  law,  have  been 
foreseen.  We  can  not  assent  to  this  interpretation.  Clearly 
Congress  did  not  intend  to  relieve  the  carrier  from  responsibility 
in  guarding  against  delays  in  a  matter  deemed  to  be  of  such  im- 
portance. By  this  Act  it  sought  to  prevent  railroad  employees 
from  working  consecutively  longer  than  the  period  prescribed, 
as  completely  and  effectively  as  could  be  accomplished  by  leg- 
islation.—  Van  Valkenburgh,  D.  J.,  p.  833. 

U.  8.  V.  Oregon-W.  R.  cfc  N.  Co.,  213  Fed.,  688. 

District  Court,  Eastern  District  of  Washington,  April  23,  1914. 
It  is  now  well  settled  that  the  Safety  Appliance  Act  and 
kindred  statutes  impose  positive  and  absolute  duties  on  carriers 
the  nonperformance  of  which  is  not  excused  by  the  exercise  of 
reasonable  diligence  or  due  care  on  their  part,  and  the  Hours  of 
Service  Act  admits  of  no  other  rational  construction.  [8t.  Louis, 
I.  M.  cfe  8.  By.  Co.  V.  Taylor,  210  U.  S.,  281;  Chicago,  B.  cfc  Q. 
By.  Co.  V.  TJ.  8.,  220  U.  S.,  559;  Delh  v.  8t.  Louis  c&  8.  F.  B. 
Co,,  220  U.  S.,  b^{).]—Budkin,  D.  J.,  p.  690. 

V.  8.  V.  Delaware,  L.  cfc  W.  B.  Co.  [unreported]. 

District  Court,  Western  District  of  New  York,  May  22,  1913. 
Now,  this  statute  absolutely  provides  that  the  emploj^ees 
of  railroad  companies,  having  charge  of  the  movements  of  trains, 
shall  not  perform  their  duty  more  than  16  consecutive  hours, 
unless  conditions  arise  which  exculpate  or  excuse  the  defendant, 
such  as  I  have  read.  *  *  *  It  is  wholly  immaterial  that  the 
employees,  themselves,  may  be  perfectly  willing  to  perform 
their  duties  in  excess  of  the  16  hours.  The  statute  prescribed, 
absolutely,  that  there  shall  be  no  performance  of  duty  beyond 
that  period,  for  the  reasons  stated  before;  so  the  willingness  of 
the  employee  to  work  longer,  or  the  receipt  by  him  of  compensa- 
tion for  working  beyond  the  time,  is  wholly  immaterial.  *  *  * 
I  call  your  attention  to  another  rule  of  law,  and  that  is  that  it 
need  not  be  shown  by  the  Government  that  these  were  willful  or 
intentional  delays;  and  the  theory  that  the  defendant  has  inten- 
tionally done,  or  omitted  to  do,  something  that  resulted  in  the 
delay,  is  of  no  importance.  It  is  not  enough  that  the  defendant 
has  given  evidence  that  the  delay  was  caused  by  the  wreck,  or 
the  blowing  out  of  the  cylinder  head,  or  some  other  cause  which 
interfered  with  the  trains  going  in  a  westerly  direction,  but  it 
must  be  shown — and  on  that  the  defendant  has  the  burden  of 
proof — that  the  cause  of  the  delay  could  not  have  been  avoided 
or  foreseen  by  tlie  exercise  of  proper  care  and  diligence. — ■ 
Hazel,  D.  J. 


CONSTKUCTION  AND  INTERPRETATION.  113 


*St  Louis,  I.  M.  db  S.  By.  Co.  v.  McWUrter,  140  S.  W.,  672. 
Court  of  Appeals  of  Kentucky,  November  17,  1911. 

Recurring  to  the  appellant's  violation  of  the  provisions  of  the 
statute  prohibiting  it  from  requiring  its  employees  to  remain  on 
duty  longer  than  16  consecutive  hours,  we  fuid  that  the  language 
of  the  provision  in  question  is  mandatory,  and  that  the  duty  it 
imposes  is  a  definite,  absolute  duty.  Its  nonperformance  may 
not,  therefore,  be  excused  by  a  showing  on  the  part  of  the  rail- 
road company  that  it  used  ordinary  care  or  reasonable  diUgence 
to  perform  it,  but  was  unable  to  do  so.     *     *     * 

The  requirements  of  the  statute  with  respect  to  the  safety 
appliances  to  be  used  on  appellant's  trains  are  no  more  imperative 
or  mandatory  than  is  the  statutory  restriction  here  involved  upon 
its  right  to  suffer  its  employees  to  engage  in  its  service  more  than 
16  consecutive  hours.  The  violation  of  the  statute  in  either  case 
invites  the  penalty  prescribed,  and  the  offender  will  not  be 
excused  upon  a  showing  of  reasonable  effort  or  diligence  in 
attempting  to  comply  with  the  statutory  requirements. — 
Settle,  J.,  p.  678. 

See  also  TJ.  S.  v.  Chicago,  M.  db  P.  S.  Ry.  Co.,  195  Fed.,  783;  U.  S.  v. 
Yazoo  &  M.  V.  R.  Co.,  203  Fed.,  159. 

— (a).  And  neither  the  lack  of  actual  contemporaneous  knowledge  on  tho 
part  of  a  carrier  that  the  Act  is  being  violated,  nor  its  previous 
instructions  to  the  contrary,  is  a  defense  to  a  prosecution  under  the  Act : 
V.  S.  V.  Oregon-W.  R,  &  N.  Co.,  213  Fed.,  688. 

District  Court,  Eastern  District  of  Washington,  April  23,  1914. 

From  this  stipulation  it  appears  *  *  *  that  before 
the  employee  Longabaugh  had  performed  any  excessive  hours 
of  service  ne  was  instructed  by  his  superior  officer  not  to  work 
in  excess  of  9  hours  in  any  24-hour  period,  either  as  agent  or 
operator,  or  in  both  capacities,  and  that  he  remained  on  duty 
for  a  longer  period  than  9  successive  hours  in  violation  of  sucn 
instructions  and  without  the  actual  knowledge  of  his  superior 
officers.  The  sole  question  presented  for  decision,  therefore,  is: 
Did  the  instructions  to  the  employee  not  to  violate  the  law,  or 
want  of  knowledge  of  a  violation  of  the  law  on  the  part  of  his 
superior  officers,  constitute  a  defense  ? 

It  is  now  well  settled  that  the  Safety-Appliance  Act  and 
kindred  statutes  impose  positive  and  absolute  duties  on  carriers 
the  nonperformance  of  which  is  not  excused  by  the  exercise  of 
reasonable  diligence  or  due  care  on  their  part,  and  the  Hours-of- 
Service  Act  admits  of  no  other  rational  construction.     [St.  LouiSf 

*  It  is  to  be  noted  that  the  judgment  of  the  Circuit  Court,  affirmed  by  the  Court  of 
Appeals  of  Kentucky,  in  this  proceeding,  was  thereafter  reversed  by  the  Supreme 
Court  of  the  United  States,  in  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  McWhirter,  229  IJ.  S., 
265.  The  basis  of  the  reversal,  however,  appears  to  have  been  the  failure  of  the  plain- 
tiff to  have  established  a  causal  connection  between  the  excess  service  of  deceased  and 
the  accident  resulting  in  his  death,  together  with  the  erroneous  interpretation  of  the 
Appellate  Court  that,  by  operation  of  law,  the  carrier  was  an  insurer  of  the  safety 
of  all  its  employees  while  working  beyond  the  statutory  time.  It  would  seem,  there- 
fore, that  the  characterization  of  the  statutory  duty  of  carriers  under  the  Act  is  unaf- 
fected by  the  order  of  reversal. 

50611—15 8 


114  HOUHS  OF  SERVICE  ACT. 


7.  M.  &  S.  By.  Go.  v.  Taylor,  210  U.  S.,  281;  Chicago,  B.  <&  Q, 
By.  Co.  Y.  U.  S.,  220  U.  S.,  559;  Delk  v.  St.  Louis  &  S.  F.  B. 
Co.,  220  U.  S.,  580.] 

It  is  urged  that  the  words  ^'require  or  permit"  imply  con- 
sent or  knowledge  on  the  part  of  the  employer,  and  this  is  per- 
haps theii'  common  significance;  but  the  word  ''permit''  also 
means  a  failure  to  prohibit  by  one  who  has  the  power  and 
authority  to  do  so,  and  in  my  opinion  the  term  is  here  used  in 
the  latter  sense. 

In  U.  S.  V.  San  Francisco  Bridge  Co.  [88  Fed.,  891],  cited 
by  the  defendant,  section  2  of  the  act  under  consideration 
expressly  provided:  ''That  any  officer  or  agent  of  the  Govern- 
ment of  the  United  States  or  of  the  District  of  Columbia,  or  any 
contractor  or  subcontractor  whose  duty  it  shall  be  to  employ, 
direct,  or  control  any  laborer  or  mechanic  employed  upon  any 
of  the  public  works  of  the  United  States  or  of  the  District  of 
Columbia,  who  shall  intentionally  violate  any  provisions  of  this 
act,  shall  be  guilty  of  a  misdemeanor.'' 

The  criminal  intent  was  there  made  a  part  of  the  offense  by 
express  legislative  enactment,  and  the  word  "permit"  was  of 
necessity  given  the  meaning  here  contended  for  by  the  defend- 
ant. But  the  Act  now  under  consideration  expressly  provides 
in  section  3  that  "in  all  prosecutions  under  this  Act  the  common 
carrier  shall  be  deemed  to  have  had  knowledge  of  all  acts  of  all 
its  officers  and  agents,"  and  this  provision  eliminates  all  ques- 
tions of  knowledge  or  criminal  intent. 

Nor  can  the  expression,  "all  its  officers  and  agents,"  be 
limited  to  general  officers  and  agents,  as  claimed  by  the  defend- 
ant. The  knowledge  of  such  general  officers  or  agents  is  imputed 
to  the  company  by  the  common  law,  and  it  is  very  apparent  that 
the  statute  in  question  is  not  merely  declaratory  of  the  common 
law.  [Citing  St  Louis,  L  M.  <&  S.  By.  Co.  v.  Taylor,  210  U.  S., 
281]     *     *     * 

For  these  reasons  I  am  of  opinion  that  the  knowledge  of  the 
agent  Longabaugh  was  the  knowledge  of  the  company  and  that 
the  instructions  given  by  his  superior  officer  not  to  work  exces- 
sive hours,  or  a  want  oi  knowledge  on  the  part  of  his  superior 
officers  that  he  did  in  fact  work  excessive  houi*s  is  no  defense. — 
RudJcin,  D.  J.,  pp.  689-690,  691. 

(b).  The  exercise  of  discretion  on  the  part  of  an  employee,  in  continuing 
on  duty  in  excess  of  16  hours,  under  the  assumption  that  he  can 
reach  a  terminal  within  the  statutory  period,  does  not  supersede 
the  mandate  of  the  law : 
U.  S.  V.  Kansas  City  Southern  By.  Co.,  202  Fed.,  828. 

Circuit  Court  oi  Appeals,  8th  Circuit,  January  24,  1913. 
The  train  dispatcher,  throughout  the  trip,  at  least  as  far  as 
Bimch,  was  fully  aware  of  the  progress  this  train  was  making 
and  what  trouble  it  was  in.  The  conductor  and  crew  were  sub- 
ject to  his  control.  In  travehng  from  SaUisaw  to  Bunch,  a 
distance  of  19  miles,  3  hours  and  10  minutes  had  been  consumed. 
At  the  latter  station,  by  lightening  his  train  a  little  more  than 
one-half,   the  conductor,   acting  presumably,  or  at  least  con- 


CONSTRUCTION  AND  INTERPRETATION.  US 


structively,  under  the  orders  of  the  train  dispatcher,  assumed 
that  he  could  reach  Stilwell — 14  miles  away — in  less  than  an 
hour.  The  condition  of  engine  and  flues  was  then  weU  known. 
The  court  below  thought  this  was  a  reasonable  exercise  of  dis- 
cretion, but  there  is  no  provision  that  such  discretion  can  super- 
sede  the  mandate  of  the  law.  Economical  reasons  alone  will  not 
suffice. —  Van  VallcenburgTi,  D.  J.,  p.  835. 

(c).  The  word  "permit,"  as  used  in  the  Act,  means  a  * 'failure  to  pro- 
hibit by  one  who  has  the  power  and  authority  to  do  so:" 

U.  S.  V.  Oregon- W.  R.  <&  N.  Co,,  213  Fed.,  688. 

District  Court,  Eastera  District  of  Washington,  April  23,  1914, 
It  is  urged  that  the  words  ''require  or  permit  imply  coBr 
sent  or  knowledge  on  the  part  of  the  employer,  and  this  is  per- 
haps their  common  significance;  but  the  word  ''permit"  also 
means  a  failure  to  prohibit  by  one  who  has  the  power  and  author- 
ity to  do  so,  and  in  my  opinion  the  term  is  here  used  in  the  latter 
sense. — Rudkin,  D.  J.,  p.  690. 

(d) .  Carriers  subject  to  the  Act  are  chargeable  with  knowledge  of  the 
acts  of  their  officers  and  agents. 

*  *  *  In  all  prosecutions  under  this  Act  the  common  caxxier 
shall  be  deemed  to  have  had  knowledge  of  all  acts  of  all  its  oficezs 
and  agents:  *    *    *.—Sec.  S,  Act  March  4, 1907  [34  StaL  at  L.,  1415,  1416], 

— (i).  And  the  expression  "all  its  officers  and  agents,"  as  used  in  the 
Act,  is  not  restricted  to  the  general  officers  or  agents  of  a  carrier, 
U.  S.  V.  Oregon-W.  R.  <&  N.  Co.,  213  Fed.,  688. 

District  Court,  Eastern  District  of  Washington,  April  23,  1914, 
Nor  can  the  expression,  "all  its  officers  and  agents,"  b© 
limited  to  general  officers  and  agents,  as  claimed  by  the  defend- 
ant. The  knowledge  of  such  general  officers  or  agents  is  imputed 
to  the  company  by  the  common  law,  and  it  is  very  apparent  that 
the  statute  in  question  is  not  merely  declaratory  of  the  commoa 
law.  [Citing  St.  Louis,  L  M.  cfc  S.  Ry.  Co.  v.  Taylor,  210  U.  S., 
281].— i?u(?H7i,  D.  J.,  p.  690. 
But  see: 

It  will  be  noted  that  the  penalties  for  violation  of 
this  Act  are  against  the  *'  common  carriers,  or  any  officer 
or  agent  thereof,  requiring  or  permitting  any  employee 
to  go,  be,  or  remam  on  duty  "  in  violation  of  the  law. 
It  is  clear  that  the  officers  and  agents  of  carriers  who 
are  liable  to  the  penalties  provided  in  the  Act  are  those 
who  have  official  direction  or  control  of  the  employees ; 
and  that  the  penalties  do  not  attach  to  the  employees 
who,  subject  to  such  supervision  or  control,  perform  the 
service  prohibited. — Adm.  Ruling  No.  287-j. 

3,  The  Act,  being  remedial,  should  be  liberally  construed. 
JJ.  S.  y.  Kansas  City  Southern  Ry.  Co.,  202  Fed.,  828. 

Circuit  Court  of  Appeals,  8th  Circuit,  January  24,  1913. 
The  law  was  passed  to  meet  a  condition  of  danger  inci- 
dental to  the  working  of  railroad  employees  so  excessively  as  to 
impair  their  strength  and  alertness.     It  is  highly  remedial,  and 


116  HOURS  OF  SERVICE  ACT. 


the  public,  no  less  than  the  employees  themselves,  is  vitally  inter- 
ested in  its  enforcement.  For  this  reason,  although  penal  in  the 
aspect  of  a  penalty  provided  for  its  violation,  the  law  should  be 
liberally  construed  m  order  that  its  purposes  may  be  effected. 
[U.  S.  V.  Kansas  City  Southern  Ry.  Co.,  189  Fed.,  471;  U.  S,  v. 
St.  Louis  S.  W.  Ry.  Co.  of  Texas,  189  Fed.,  954.]— Van  ValJcen- 
hurgh,  D.  J.,  p.  832. 
U.  S.  V.  Kansas  City  Southern  Ry.  Co.,  189  Fed.,  471;  San  Pedro, 
L.  A.  (&  S.  L.  R.  Co.  V.  U.  S.,  213  Fed.,  326;  U.  S.  v.  Missouri 
Pacific  Ry.  Co.,  D.  C,  W.  D.  Missouri,  May  8,  1913,  Van  Valken- 
burgh,  D.  J.  [unrepprted]. 

4.  Proceedings  on  behalf  of  the  Government  for  the  recovery  of  the 

penalties  provided  by  the  Act  are  civil  actions. 

U.  S.  V.  Kansas  City  Southern  Ry.  Co.,  202  Fed.,  828;  U.  S.  v^ 
Houston  B.  ck  T.  Ry.  Co.,  205  Fed.,  344;  V.  S.  v.  Atlantic  Coast 
Line  R.  Co.,  211  Fed.,  897;  TJ.  S.  v.  Missouri  Pacific  Ry.  Co., 
D.  C,  W.  D.  Missouri,  May  8,  1913,  Van  Valkenburgh,  D.  J. 
[unreported];  TJ.  S.  v.  Northern  Pacific  Ry.  Co.,  D.  C,  W.  D. 
Washington,  Feb.  13,  1914,  Cushman,  D.  J.  [unreported].  See 
also  Missoun,  K.  &  T.  Ry.  Co.  of  Texas  v.  [7.  .S^.,  231,  U.  S.,  112; 
TJ.  S.  V.  St.  Louis  S.  W.  Ry.  Co.  of  Texas,  189  Fed..  954;  TJ.  S.  v. 
Oregon-W.  R.  <&  N.  Co.,  213  Fed.,  688. 

5.  The  Act  is  analogous  to  the  Safety  Appliance  Acts : 

TJ.  S.  V.  Kansas  City  Southern  Ry.  Co.,  202  Fed.,  828. 
See  also  TJ.  S.  v.  St.  Louis  S.  W.  Ry.  Co.  of  Texas,  189  Fed.,  954. 

— (a).  But  is  distinguishable  from  the  Employers'  Liability  Acts: 
Baltimore  &  0.  R.  Co.  v.  /.  C.  C,  221  U.  S.,  612. 
Supreme  Court,  May  29,  1911. 

The  statute,  therefore,  in  its  scope,  is  materially  different 
from  the  act  of  June  11,  1906,  chapter  3073,  34  Stat.,  232,  which 
was  before  this  court  in  the  Em'ployer's  Liability  Cases,  207  U.  S., 
463.  There,  while  the  carriers  described  were  those  engaged  in 
the  commerce  subject  to  the  regulating  power  of  Congress,  it 
appeared  that  if  a  carrier  was  so  engaged  the  act  governed  its 
relation  to  every  employee  although  the  employment  of  the  lat- 
ter might  have  nothing  whatever  to  do  with  interstate  com- 
merce. In  the  present  statute,  the  limiting  words  govern  the 
employees  as  well  as  the  carriers. — Hughes,  Justice,  pp.  617-618. 
But  see  StaU  v.  Chicago,  M.  cfc  St.  P.  Ry.  Co.,  117  N.  W.,  686. 
— (b).  And  from  the  28 -Hour  Law. 

TJ.  S.  V.  Kansas  City  Southern  Ry.  Co.,  202  Fed.,  828. 

Circuit  Court  of  Appeals,  8th  Circuit,  January  24,  1913. 

The  trial  court,  in  sustaining  defendant's  motion  for  a 
directed  verdict,  indicated  the  view  that  the  railway  com- 
pany was  held  to  the  exercise  of  ordinary  care  in  anticipating 
causes  of  delay  that  might  interfere  with  observance  of  this 
law.  This  also  is  the  position  of  defendant  in  error,  and  we 
are  asked  to  apply  the  rule  of  construction  adopted  with  respect 
to  the  28-hour  law  [34  Stat.  L.,  607],  which  was  enacted  to 
prevent  cruelty  to  animals  by  long  confinement  without  rest 


GONSTRUCTION  AND  INTERPRETATION.        117 


while  in  transit  by  railroad.  It  is  there  provided  that  the 
carrier  shall  not  confine  domestic  animals  in  cars  for  a  longer 
period  than  28  hours,  without  unloading  them  for  rest,  water, 
and  feeding,  unless  prevented  by  causes  'Vhich  can  not  be 
anticipated  or  avoided  by  the  exercise  of  due  diUgence  and 
foresight.''  The  carrier  is  liable  for  a  penalty  only  when  it 
''knowingly  and  willfully"  fails  to  comply  with  the  provision 
of  the  law.  This  court  has  held  that  the  words  ''knowingly  and 
willfully''  are  designed  to  describe  the  attitude  of  a  carrier, 
which,  having  a  free  will  or  choice,  either  intentionally  disregards 
the  statute  or  is  plainly  indifferent  to  its  requirements.  [;S'^. 
Louis  cfc  S.  F.  R.  Go.  v.  U.  S.,  169  Fed.,  69;  St.  Joseph  Stock 
Yards  Co.  v.  U.  S.,  187  Fed.,  104.]  At  all  times  the  carrier 
has  been  held  to  the  exercise  of  due  dihgence  and  foresight. 
The  degree  of  such  dihgence,  foresight,  and  care  required 
depends  largely  upon  the  object  aimed  at  and  the  situation 
presented;  and  whether  the  defendant  has  discharged  the  full 
duty  laid  upon  it  is  to  be  determined  from  the  facts  and  circum- 
stances in  each  case. 

The  Act  under  consideration  does  not  employ  the  words 
''knowingly"  and  "willfully."  The  carrier  is  made  liable  if  it  re- 
quires or  permits  any  employee  to  be  or  remain  on  duty  in  viola- 
tion of  stated  provisions.  This  case  then  falls  within  that  class 
where  purposely  doing  a  thing  prohibited  by  statute  may  amount 
to  an  offense,  although  the  act  does  not  involve  turpitude  or 
moral  wrong.  [Armour  Packing  Co.  v.  V.  S.,  153  Fed.,  1;  Id. 
V.  Id.,  209  U.  S.,  56;  Chicago,  St.  P.,  M.  <&  0.  By.  Co.  v.  U. 
S.,  162  Fed.,  835.]— Van  ValkenhurgJi,  D.  J.,  pp.  832-833. 

-(c).  Violations  of  the  Honrs  of  Service  Act:  HELD  more  serious  than 

those  of  the  Safety  Appliance  Act  and  of  the  28-Hour  Law. 
Z7.  S.  V.  Minneapolis,  St.  P.  c&  S,  S.  M.  Ry.  Co.  [imreported]. 
District  Court,  District  of  North  Dakota,  January  21,  1913. 
The  defendant  in  each  of  these  actions  is  charged  with 
violating  the  Act  of  March  4,  1907  [34  Stat.  L.,  1415],  limiting 
the  hours  of  continuous  employment  of  men  engaged  in  the 
railway  service.  Their  counsel  first  caU  my  attention  to  the 
difference  between  the  penal  clause  of  this  Act  and  the  penal 
clause  of  the  Safety  Appliance  Act  and  the  28-hour  law  in 
regard  to  live  stock.  In  the  latter  statutes  a  minimum  fine  of 
$100  is  fixed,  whereas  no  minimum  limitation  is  prescribed  by 
the  statute  here  involved ;  and  for  this  reason,  counsel  says.  Con- 
gress has  indicated  that  the  first-mentioned  statute  is  less 
serious  than  the  others,  and  its  violation  might  properly  be  pun- 
ished by  a  merel;^  nominal  fine.  I  can  attach  no  significance  to 
the  difference  which  has  been  pointed  out.  It  would  be  impos- 
sible for  any  rational  mind  to  find  a  rational  foundation  for  tha 
differences  in  the  penal  clauses  of  our  federal  criminal  laws.  For 
example,  a  clerk  who  embezzles  postal  fimds  may  be  punished 
with  a  nominal  fine,  but  a  clerk  who  embezzles  the  funds  of  a 
national  bank  can  not  be  given  a  less  punishment  than  five  years 
in  the  penitentiary.  Such  contrasts  as  this  show  how  impossible 
it  is  to  attach  significance  to  variations  in  penal  clauses.     That 


118  HOURS  OF  SERVICE  ACT. 


is  a  subject  to  which  Congress  has  never  yet  given  any  compre- 
hensive consideration.  Courts  must  therefore  look  at  the  sub- 
ject matter  of  laws,  to  ascertain  whether  public  welfare  is  seri- 
ously or  only  slightly  involved  in  their  violation. 

Adopting  that  course,  I  must  regard  all  substantial  viola- 
tions of  the  statute  Umiting  the  period  of  continuous  employ- 
ment of  men  engaged  in  the  railroad  service  as  serious,  much 
more  serious  than  either  of  the  other  statutes  referred  to.  The 
violation  of  the  28-hour  law  concerns  only  live  stock;  that  of 
the  Safety  Appliance  Act  will,  as  a  rule,  only  affect  a  single 
employee;  whereas  a  violation  of  the  statute  here  involved  may 
cause  injury  not  only  to  the  traveling  public,  but  to  large  groups 
of  employees.  The  statute  has  behind  it  the  purpose  to  reduce 
the  appalling  record  of  death  and  injury  caused  by  American 
railroads.  The  yearly  statistics  on  this  subject  leave  no  room 
to  doubt  the  imperative  necessity  for  the  law,  and  furnish  ample 
justification  for  its  rigid  enforcement. — Amidon,  D.  J. 

6.  A  substantial  violation  of  the  Act  should  never  be  satisfied  by  a 
merely  nominal  penalty : 
U,  S.  V.  Cleveland,  C,  C.  &  St.  L.  Ry.  Co.  [unreported]. 

District  Court,  Southern  District  of  Ohio,  December  12,  1  911. 
If  there  had  been  any  flagrant  violation  of  the  law  or  any 
willful  intention  not  to  keep  within  its  terms,  then  it  would  be 
a  proper  case  to  inflict  possibly  the  maximum — at  any  rate  a 
severe  penalty. — Hollister,  D.  J. 
17.  S.  y.  Minneapolis,  St.  P.  cfe  S.  S.  M.  Ry.  Co.  [unreported]. 
District  Court,  District  of  North  Dakota,  January  21,  1913. 
No  truth  of  science,  however,  is  better  established  than  that 
fatigue  is  not  simply  a  matter  of  muscles,  but  that  it  involves 
nerves  and  brain  as  well,  and  extends  to  all  the  faculties  of  the 
mind  itself.     It  produces  physiological  changes  which  deaden 
the  will  and  impair  the  sense  of  sight  and  of  hearing.     It  is  as 
truly  a  physical  cause  of  accident  as  are  open  switches  and  broken 
rails. 

Such  being  the  fact,  a  substantial  violation  of  the  statute 
here  involved  can  never  justify  a  merely  nominal  fine.  It 
involves  human  Hfe — the  safety  not  only  of  large  numbers  of 
employees,  but  of  the  general  traveling  pubhc. — Amidon,  D.  J* 

(a).  The  Act  prescribes  a  separate  penalty  for  each  and  every  employee 
who  remains  on  duty  in  excess  of  the  permitted  periods : 
Missouri,  K.  &  T.  Ry.  Co.  of  Texas  v.  U.  S.,  231  U.  S.,  112. 
Supreme  Court,  November  10,  1913. 

The  main  question  is  whether,  when  several  persons  thus 
are  kept  beyond  the  proper  time  by  reason  of  the  same  delay  of 
a  train,  a  separate  penalty  is  incurred  for  each  or  only  one  for 
aU.  The  Circuit  Court  of  Appeals  decided  for  the  Government 
without  discussion. 

The  petitioner  cites  many  cases  m  favor  of  the  proposition 
that  generally,  when  one  act  has  several  consequences  that  the 
law  seeks  to  prevent,  the  liabiHty  is  attached  to  the  act,  and  is 
but  one.  It  argues  that  the  delay  of  the  train  was  such  an  act 
and  that  the  principle,  which  is  a  very  old  one,  applies.     [Balti- 


CONSTRUCTION  AND  INTERPRETATION.  119 


more  <&  0.  S.  W.  R.  Co.  v.  U.S.,  220  U.  S.,  94.]  But  unless  the 
statute  requires  a  different  view,  to  call  the  delay  of  the  train 
the  act  that  produced  the  wrong,  is  to  beg  the  question.  [Mem- 
pJhis  cfe  C.  R.  Co.  V.  Reeves,  10  Wall.,  176;  Denny  v.  New  York 
Central  cfc  E.  R.  R.  Co.,  13  Gray,  481.]  The  statute  was  not 
violated  by  the  delay.  That  may  have  made  keeping  the  men 
overtime  more  likely,  but  was  not  in  itself  wrongful  conduct 
quoad  Jioc.  The  wrongful  act  was  keeping  an  employee  at  work 
overtime,  and  that  act  was  distinct  as  to  each  employee  so  kept. 
Without  stopping  to  consider  whether  this  argument  would  oe 
met  by  the  proviso  declaring  a  "  delay '^  in  certain  cases  not  to  be 
within  the  statute,  it  is  enough  to  observe  that  there  is  nothing 
to  hinder  making  each  consequence  a  separate  cause  of  action  or 
offense,  if  by  its  proper  construction  the  law  does  so  [Flemister 
V.  U.  8.,  207  U.  S.,  372];  so  that  the  real  question  is  simply 
what  the  statute  means.  The  statute  makes  the  carrier  who 
permits  ''any  employee"  to  remain  on  duty  in  violation  of  its 
terms  liable  to  a  penalty  ''for  each  and  every  violation.'*  The 
implication  of  these  words  can  not  be  made  much  plainer  by 
argument.  But  it  may  be  observed,  as  was  said  by  the  Govern- 
ment, that  as  toward  the  public  every  overworked  man  presents 
a  distinct  danger,  and  as  toward  the  employees  each  case  of 
course  is  distinct.  [  U.  8.  v.  8t.  Louis  8.  W.  Ry.  Co,  of  Texas^ 
184  Fed.,  28;  People  Y.  8pencer,  201  N.  Y.,  105].— Holmes,  Justice, 
pp.  118-119.  [Affirming  the  judgment  of  the  Circuit  Court  of 
Appeals  for  the  Fifth  Circuit  and  of  the  District  Court  for  the 
Eastern  District  of  Texas  (both  unreported).] 

— (b).  But  the  amounts  of  such  penalties  are  determinable  by  the  courts. 

Missouri,  K.  cfc  T.  Ry.  Co.  of  Texas  v.  Z7.  8.,  231  U.  S.,  112. 
Supreme  Court,  November  10,  1913. 

It  is  argued  that  the  amount  of  the  penalty  was  for  the 
jury,  the  proceeding  being  a  civil  suit.  But  the  penalty  is  a 
deterrent  not  compensation.  The  amount  is  not  measured  by 
the  harm  to  the  employees,  but  by  the  fault  of  the  carrier,  and 
being  punitive,  rightly  was  determined  by  the  judge.  [Z7.  8,  v. 
Atlantic  Coast  Line  R.  Co.,  173  Fed.,  764;  Atchison,  T.  <&  8.  F, 
Ry.  Co.Y.  U.  8.,  178  Fed.,  12.]— Holmes,  Justice,  pp.  119-120. 
[Affirming  the  judgment  of  the  Circuit  Court  of  Appeals  for  the 
Fifth  Circuit  and  of  the  District  Court  for  the  Eastern  District 
of  Texas  (both  unreported)]. 

U.  8.  V.  Boston  c&  M.  R.  Co.,  D.  C,  D.  New  Hampshire,  October 
29,  1912,  Aldrich,  D.  J.  [unreported];  11.  8.  v.  Great  Northern  Ry, 
Co.,  D.  Minnesota,  June  4,  1913,  Willard,  D.  J.  [unreported]. 

7.  Fatigue  is  as  truly  a  physical  cause  of  railroad  accidents  as  broken 
rails  and  open  switches. 

U.  8.  V.  Minneapolis,  8t.  P.  &  8.  8.  M.  Ry.  Co.  [unreported]. 
District  Court,  District  of  North  Dakota,  January  21,  1913. 
We  are  still  more  or  less  under  the  spell  of  the  "old  idea  that 
care  is  wholly  a  matter  of  the  will.     No  truth  of  science,  how- 
ever, is  better  established  than  that  fatigue  is  not  simply  a 
matter  of  muscles,  but  that  it  involves  nerves  and  brain  as  well, 


120  HOURS  OF  SERVICE  ACT. 


and  extends  to  all  the  faculties  of  the  mind  itself.  It  produces 
physiological  changes  which  deaden  the  will  and  impair  the 
sense  of  sight  and  of  hearing.  It  is  as  truly  a  physical  cause  of 
accident  as  are  open  switches  and  broken  rails. — Amidon,  D.  J. 

8*  The  inability  of  carriers  to  compel  employees  to  rest  during  their 
intermissions  from  actual  service  is  a  remote  contingency. 
U.  S.  V.  Great  Northern  Ry.  Co.,  206  Fed.,  838. 
District  Court,  District  of  Idaho,  July  9,  1913. 

It  has  been  suggested  that  the  carrier  has  no  power  to  com- 
pel its  employees  to  rest,  and  when  given  the  opportunity  for  rest 
they  may  use  the  time  in  laboring  upon  their  own  account  or  for 
some  other  employer,  but  such  a  contingency  is  remote  in  the 
extreme;  at  least  it  is  one  with  which  we  are  not  presently  con- 
cerned.— Dietrich,  D.  J.,  p.  841. 
See  also: 

San  Pedro,  L.  A.  &  S.  L.  R.  Go.  v.  V.  S.,  213  Fed.,  326. 
Circuit  Court  of  Appeals,  8th  Circuit,  March  27,  1914. 

In  this  legislation  Congress  had  in  view  the  many  serious 
raiboad  accidents  caused  by  the  unfitness  for  duty  of  men 
engaged  in  or  having  to  do  with  the  movements  of  trains,  who 
had  endured  excessive  periods  of  continuous,  unbroken  service 
without  intervals  for  rest.  The  remedy  adopted  was  by  limiting 
the  maximum  of  the  hours  of  service  and  the  minimum  for  the 
intervals  between.  It  was  thought  futile  to  attempt  to  control 
the  employees  in  their  use  of  their  off  time;  therefore,  as  being 
more  practical  and  efficient,  the  command  was  laid  upon  and 
confined  to  those  who  gave  them  employment  in  their  regular 
occupations. — Hoolc,  G.  J.,  p.  328. 

9.  A  carrier  can  not  escape  liability  to  a  passenger  for  laying  off  a 
train  and  consequentially  delaying  his  arrival  at  his  destination, 
on  the  theory  that  such  a  course  may  have  been  necessary  in 
order  to  avoid  a  violation  of  the  Act,  if  the  delay  responsible  for 
the  situation  was  attributable  to  its  own  negligence. 
Black  V.  Gharleston  dc  W,  G,  Ry.  Go.,  69  S.  E.,  230. 

C.  SCOPE  OF  THE  ACT. 

1.  Carriers  subject  to  the  Act. 

That  the  provisions  of  this  Act  shall  apply  to  any  common  carrier  or 
carriers,  their  officers,  agents,  and  employees,  engaged  in  the  trans- 
portation of  passengers  or  property  by  railroad  in  the  District  of  Co- 
lumbia or  any  Territory  of  the  United  States,  or  from  one  State  or 
Territory  of  the  United  States  or  the  District  of  Columbia  to  any  other 
State  or  Territory  of  the  United  States  or  the  District  of  Columbia,  or 
from  any  place  in  the  United  States  to  an  adjacent  foreign  country,  or 
from  any  place  in  the  United  States  through  a  foreign  country  to  any 
other  place  in  the  United  States.  *  *  *.—Sec.  1,  Act  March  4,  ■  1907 
[S4Stat.  atL.,  1415,1416]. 

Scope  of  the  Act. — The  provisions  of  this  Act 
apply  to  all  common  carriers  by  railroad  in  the  District 
of  Columbia,  or  in  any  Territory  of  the  United  States,  or 

c. 


SCOPE.  121 


engaged  in  the  movement  of  interstate  or  foreign  traffic; 
and  to  all  employees  of  such  common  carriers  who  are 
engaged  in  or  connected  with  the  movement  of  any  train 
carrying  traffic  in  the  District  of  Columbia,  or  m  any 
Territory,  or  carrying  interstate  or  foreign  traffic. — Adm. 
Ruling  No.  287a. 

Electric  railways — Street-car  companies. — 
Upon  inquiry  whether  the  Hours  of  Service  law  applies 
to  electric  street  car  lines  which  are  interstate  carriers: 
Held  J  That  it  appUes  to  all  railroads  subject  to  the  pro- 
visions of  the  Act  to  regulate  commerce,  as  amended, 
including  street  railroads  when  engaged  in  interstate 
commerce. — Adm.  Ruling  No.  66. 

(a).  "Common  Carrier'*  defined. 
TJ,  8.  V.  Ramsey,  197  Fed.,  144. 

Circuit  Court  of  Appeals,  8th  Circuit,  May  27,  1912. 

"A  common  or  public  carrier  is  one  who,  by  virtue  of  his 
business  or  calHng,  undertakes,  for  compensation,  to  transport 
personal  property  from  one  place  to  another,  either  by  land  or 
water,  and  deliver  the  same,  for  all  such  as  may  choose  to  employ 
him;  and  everyone  who  undertakes  to  carry  and  deliver,  for 
coinpensation,  the  goods  of  all  persons  indifferently,  is,  as  to 
liability,  to  be  deemed  a  common  carrier."  Moore  on  Carriers, 
p.  18. —  Hunger,  D.  J.,  p.  146. 

(b).  "Railroad,"  as  used  in  the  Act,  defined. 

*  *  *  The  term  "railroad"  as  used  in  this  Act  shall  include  all 
bridges  and  ferries  used  or  operated  in  connection  with  any  railroad, 
and  also  all  the  road  in  use  by  any  common  carrier  operating  a  railroad, 
whether  owned  or  operated  under  a  contract,  agreement,  or  lease; 
*    *    *.—Sec.  1,  Act  March  4,  1907  [34  Stat,  at  L.,  1415, 14I6]. 

2.  The  Eeceiver  of  a  railroad  company,  as  such,  is  a  common  carrier 
within  the  purview  of  the  Act. 
U.  S.  V.  Ramsey,  197  Fed.,  144. 

Circuit  Court  of  Appeals,  8th  Circuit,  May  27,  1912. 

From  a  consideration  of  the  foregoing  authorities  it  seems 
to  us  clear  that  the  term  '^common  carrier"  had  a  well-defined 
meaning,  and  that  the  receiver  of  a  railroad  came  within  the 
designation  '^ common  carrier;"  that  Congress,  in  using  the 
term  *' common  carrier,"  used  it  in  the  sense  in  which  such  words 
are  generally  meant  and  understood;  that  the  object  and  pur- 
pose of  the  statute  would  be  entirely  defeated  in  all  cases  in 
which  a  railroad  or  other  common  carrier  is  operated  by  a 
receiver  if  the  words  "common  carrier"  should  be  given  a  more 
restricted  meaning  than  generally  understood.  It  seems  clear 
that  a  receiver  in  the  operation  of  a  railroad  is  a  common  carrier 
within  the  meaning  of  the  statute;  and  though  he  is  not  per- 
sonally liable,  he  is  liable  in  his  official  capacity,  and  the  pay- 
ment of  any  judgment  obtained  would  be- subject  to  the  order 
of  the  court  appointing  the  receiver  in  the  exercise  of  its  equi- 
table powers. — Hunger,  D.  J.,  p.  148. 


122  HOTIES  OF  SERVICE  ACT. 


S.  *  Employees  subject  to  the  Act. 

*  *  *  the  term  "employees"  as  used  in  this  Act  shall  be  held  to 
mean  persons  actually  engaged  in  or  connected  with  the  movement 
of  any  train.— -Sec.  i,  Act  March  4, 1907  [34  Stat,  at  L.,  1415, 14I6]. 

Employees  subject  to  the  Act. — The  Act  does  not 
specify  the  classes  of  employees  that  are  subject  to  its 
terms.  All  employees  engaged  in  or  connected  Avith  the 
movement  of  any  train  as  described  in  section  1  are 
within  its  scope.  Train  dispatchers,  conductors,  engi- 
neers, telegraphers,  firemen,  brakemen,  train  baggage- 
men who,  by  rules  of  carriers,  are  required  to  perform 
any  duty  in  connection  with  the  movement  01  trains, 
yardmen,  switch  tendei-s,  tower  men,  block-signal  oper- 
ators, etc.,  come  within  the  provisions  of  the  statute. — ■ 
Adm.  Ruling  No.  287-c. 

Feery  employees. — ^The  Houi-s  of  Service  law  does 
not  apply  to  employees  on  a  ferry,  even  though  the 
ferry  be  owned  by  a  railroad  company.  The  law  applies 
to  employees  connected  with  the  movement  of  trains, 
and  hence  does  not  embrace  employees  engaged  only 
in  the  operation  of  a  ferry.  This  ruling  does  not  apply 
to  car  ferries. — Adm.  Ruling  No.  108. 

Train  baggagemen. — The  provisions  of  section  1 
of  the  Hours  of  Service  law  apply  to  train  baggagemen 
who  are  employees  of  the  railway  company  and  who  are 
required  by  the  rules  of  the  company  to  perform  or  to 
hold  themselves  in  readiness,  when  called  upon,  to 
perform  any  duty  connected  with  the  movement  of  any 
train. — Adm.  Ruling  No.  275, 

U,  S.  V.  Missouri  Pacific  Ry.  Co.,  206  Fed.,  847. 

District  Court,  District  of  Kansas,  March  24,  1913. 

The  term  ''employees,"  as  employed  in  and  defined  bv  the 
Act  itself,  is  ''persons  actually  engaged  in  or  connected  with  the 
movement  of  any  train." — Pollock,  U.  J.,  p.  849. 
JJ.  8.  V.  AtcUson,  T.  <Sb  S.  F.  Ry,  Co.,  177  Fed.,  115;  San  Pedro, 
L.A.  &  S.  L.  Ry.  Co.,  v.  U.  S.,  213  Fed.,  826.  See  also  Schwdgy, 
Chicago.  M.  &  St.  P.  Ry.  Co.,  205  Fed.,  96;  State  v.  Chicago,  M. 
cfe  St.  P.  Ry.  Co.,  117  N.  W.,  686. 
See  also: 

Baltimore  cfc  0.  R.  Co.  v.  I.  C.  C,  221  U.  S.,  612. 
Supreme  Court,  May  29,  1911. 

No  difficulty  arises  in  the  construction  of  this  language. 
The  first  sentence  states  the  application  to  carriers  and  em- 
ployees who  are  "engaged  in  the  transportation  of  passengers  or 
property  by  railroad"'  m  the  District  of  Columbia  or  the  Terri- 
tories, or  in  interstate  or  foreign  commerce.  ^  The  definition  in 
the  second  sentence,  of  what  the  terms  "railroad"  and  "em- 
ployees" shall  include,  qualify  these  words  as  previously  used, 

*By  Executive  Order  of  President  Taft,  dated  November  23,  1909,  the  require- 
ments of  the  proviso  in  section  2  of  the  Act  were  extended  to  the  employees  of  the 
Panama  Railroad  Company. 


SCOPE.  123 


but  do  not  remove  the  limitation  as  to  the  nature  of  the  trans- 
portation in  which  the  employees  must  be  engaged  in  order  to 
come  within  the  provisions  of  the  statute,  if  the  definition,  in 
the  last  part  of  the  sentence,  of  the  words  used  in  the  first  part 
be  read  in  connection  with  the  latter  the  meaning  of  the  whole 
becomes  obvious.  The  section,  in  effect,  thus  provides:  ''This 
Act  shall  apply  to  any  common  carrier  or  carriers,  their  officers, 
agents,  and  employees  (meaning  by  ^employees'  persons  actually 
engaged  in  or  connected  with  the  movement  of  any  train),  en- 
gaged in  the  transportation  of  passengers  or  property  by  rail- 
road (meaning  by  'railroad'  to  include  all  bridges  and  ferries 
used  or  operated  in  connection  with  any  railroad)  in  the  Dis- 
trict of  Columbia  or  any  Territory  *  *  *  or  from  one  State 
*  *  *  to  any  other  State,"  etc.  In  short,  the  employees 
to  which  the  Act  refers,  embracing  the  persons  described  in  the 
last  sentence  of  the  section,  are  those  engaged  in  the  transpor- 
tation of  passengers  or  property  by  railroad  in  the  district,  terri- 
torial, interstate  or  foreign  commerce  defined;  and  the  railroad, 
including  bridges  and  ferries,  is  the  railroad  by  means  of  which 
the  defined  commerce  is  conducted. — Hughes,  Justice,  p.  617. 

(a).  A  fireman  or  other  employee  subject  to  the  Act  while  engaged  in 
watching  an  engine  is  connected  with  the  movement  of  a  train 
within  the  purview  of  the  Act. 
See  Item  5-(d)-(i),  p.  131,  'post. 

(b).  "Other  employee,"  as  used  in  the  proviso  in  section  2  of  the  Act,  de- 
fined. 
Missouri  Pacific  Ry.  Co.  v.  U.  S.,  211  Fed.,  893. 

Circuit  Court  of  Appeals,  8th  Circuit,  February  16,  1914. 
The  proviso  ought  not  to  be  construed  so  broadly  as  to 
anihilate  the  general  language  of  the  section.  We  think  that 
under  a  well-established  rule  of  construction  the  words  **or 
other  employee"  found  in  the  proviso,  must  be  construed  to 
mean  an  employee  engaged  in  the  same  character  of  service  as 
a  train  dispatcher  or  operator,  who  by  the  use  of  the  telegraph 
or  telephone  performs  the  work  described  in  the  proviso.  In 
other  words,  Congress  intended  the  9-hour  provision  to  apply 
to  employees  whose  primary  duty  was  to  dispatch,  report, 
transmit,  receive,  or  deliver  orders  pertaining  to  or  affecting 
train  movements.  *  *  *  Where  general  words  follow  an 
enumeration  of  particular  classes  of  persons  or  things,  they  will 
be  construed  as  applicable  only  to  persons  or  thmgs  of  the  same 
general  nature  or  class  as  those  enumerated.  The  particular 
words  are  presumed  to  describe  certain  species  and  the  general 
words  to  be  used  for  the  purpose  of  including  other  species  of 
the  same  genus.  The  rule  is  based  on  the  obvious  reason  that, 
if  the  legislature  had  intended  the  general  words  to  be  used  in 
their  unrestricted  sense,  they  would  have  made  no  mention  of 
the  particular  classes.  The  words  ''other"  or  "any  other,"  fol- 
lowuig  an  enumeration  of  particular  classes,  are  therefore  to  be 
read  as  "other  such  like,"  and  to  include  only  others  of  like  kmd 
or  character.  [Citing  First  Nat.  Bank  of  Anamoose  V.  TJ.  S., 
206  Fed.,  374,  and  U.  S.  v.  Bevans,  3  Wheat.,  336.]     *     *     * 


124  HOURS  OF  SERVICE  ACT. 


As  the  word  ''employee"  in  the  proviso  in  section  2  includes 
"operator"  and  ''train  dispatcher,"  for  the  latter  are  both  em- 
ployees, the  conclusion  here  is  irresistible  that  Congress  intended 
by  the  use  of  the  words  "other  employee"  to  mean  an  employee 
engaged  primarily  in  the  same  class  of  service  as  would  be  per- 
formed by  an  operator  or  train  dispatcher. —  Garland,  G.  J., 
pp.  896,  897. 

But  see  U.  S.  v.  Houston  B.  &  T.  Ry.  Go.,  205  Fed.,  344. 

4.  limitations  of  service. 

That  it  shall  be  unlawful  for  any  common  carrier,  its  officers  or 
agents,  subject  to  this  Act  to  require  or  permit  any  employee  subject  to 
this  Act  to  be  or  remain  on  duty  for  a  longer  period  than  sixteen  con- 
secutive hours,  and  whenever  any  such  employee  of  such  common  car- 
rier shall  have  been  continuously  on  duty  for  sixteen  hours  he  shaU  be 
relieved  and  not  required  or  permitted  again  to  go  on  duty  until  he  has 
had  at  least  ten  consecutive  hours  off  duty;  and  no  such  employee  who 
has  been  on  duty  sixteen  hours  in  the  aggregate  in  any  twenty-four- 
hour  period  shall  be  required  or  permitted  to  continue  or  again  go  on 
duty  without  having  had  at  least  eight  consecutive  hours  off  duty: 
Provided,  That  no  operator,  train  dispatcher,  or  other  employee  who 
by  the  use  of  the  telegraph  or  telephone  dispatches,  reports,  transmits, 
receives,  or  delivers  orders  pertaining  to  or  affecting  train  movements 
shall  be  required  or  permitted  to  be  or  remain  on  duty  for  a  longer  period 
than  nine  hours  in  any  twenty-four-hour  period  in  all  towers,  offices, 
places,  and  stations  continuously  operated  night  and  day,  nor  for  a 
longer  period  than  thirteen  hours  in  all  towers,  offices,  places,  and  sta- 
tions operated  only  during  the  daytime,  except  in  case  of  emergency, 
when  the  employees  named  in  this  proviso  may  be  permitted  to  be  and 
remain  on  duty  for  four  additional  hours  in  a  twenty-four-hour  period 
on  not  exceeding  three  days  in  any  week:  *  *  *. — Sec.  S,  Act  March  ^, 
1907  [34  Stat.  L.,  1415, 1416]. 

6.  "On  duty"  and  "off  duty,"  as  used  in  the  Act,  defined. 

The  requirement  for  ten  consecutive  hours  off  duty 
appHes  only  to  such  employees  as  have  been  on  duty 
for  sixteen  consecutive  hours.  The  requirement  for 
eight  consecutive  hours  off  duty  applies  only  to  em- 
ployees who  have  not  been  on  duty  sixteen  consecu- 
tive hours,  but  have  been  on  duty  sixteen  hours  in  the 
aggregate  out  of  a  twenty-four-hour  period.  Such 
twenty-four-hour  period  begins  at  the  time  the  em- 
ployee first  goes  on  duty  after  having  had  at  least  eight 
consecutive  hours  off  duty.  The  term  "on  duty"  in- 
cludes all  the  time  during  which  the  employee  is  per- 
forming service,  or  is  held  responsible  for  performance 
of  service.  An  employee  goes  "on  duty"  at  the  time 
he  begins  to  perform  service  or  at  which  he  is  required 
to  be  in  readiness  to  perform  service,  and  goes  "off 
duty"  at  the  time  he  is  relieved  from  service  and  from 
responsibihty  for  performance  of  service. — Adm.  Ruling 
No.  287-b. 


SCOPE.  125 


Missouri,  K.  c&  T.  Ry.  Co.  of  Texas  v.  U,  S.,  231  U.  S.,  112. 
Supreme  Court,  November  10,  1913. 

One  of  the  delays  was  while  the  engine  was  sent  off  for 
water  and  repairs.  In  the  meantime  the  men  were  waiting, 
doing  nothing.  It  is  argued  that  they  were  not  on  duty  during 
this  period  and  that  if  it  be  deducted,  they  were  not  kept  more 
than  sixteen  hours.  But  they  were  under  orders,  liable  to  be 
called  upon  at  any  moment,  and  not  at  hberty  to  go  away. 
They  were  none  the  less  on  duty  when  inactive.  Their  duty 
was  to  stand  and  wait.  [U.  S.  v.  Chicago ,  M.  &  P.  S.  By.  Co., 
197  Fed.,  624;  TJ.  S.  v.  Denver  &  R.  G.  R.  Co.,  197  Fed.,  629.]— 
Holmes,  Justice,  p.  119.  [Affirming  the  judgment  of  the  Cir- 
cuit Court  of  Appeals  for  the  Fifth  Circuit  and  of  the  District  Court 
for  the  Eastern  District  of  Texas  (both  decisions  unreported)], 

V.  8  V.  Chicago,  M.  &  P.  S.  Ry.  Co.,  195  Fed.,  783. 

District  (Jourt,  Western  District  of  Washington,  April  29,  1912. 
An  employee  is  on  duty  when  he  is  at  his  post  in  obedience 
to  rules  or  reauirements  of  his  superior  and  ready  and  willing 
to  work,  whetner  actually  at  work  or  waiting  for  orders  or  for 
the  removal  of  hindrances  from  any  cause.  The  words  ''on 
duty'^  appear  to  have  been  intelligently  chosen  and  used  in 
the  composition  of  the  statute  to  bar  all  excuses  for  noncom- 
pliance with  its  requirements  by  any  pretext  of  misunder- 
standing its  meaning.  [U.  S.  v.  Illinois  Central  R.  Co.,  180 
Fed.,  ^ZO.y-Hanford,  D.  J.,  p.  785. 

U.  8.  v.  Northern  Pacific  Ry.  Co.  [unreported]. 

District  Court,  Western  District  of  Washington,  Feb.  13,  1914. 
An  employee  goes  on  duty,  within  the  meaning  of  the  law, 
at  the  time  he  reports  for  work,  as  required  by  the  rules  of  the 
company,  and  begins  the  work  of  looking  after  his  train  and 
seeing  that  it  is  in  proper  condition  for  road  service.  He  remains 
on  duty  while  he  is  in  charge  of  his  train,  performing  service  in 
and  about  the  same,  or  held  responsible  for  the  performance  of 
such  service  should  the  occasion  therefor  arise. 

An  employee  is  not  off  duty  until  he  is  relieved  from  all 
responsibility  as  to  his  train  and  becomes  his  own  free  agent  to 
go  and  do  as  he  pleases.  Brief  interruptions,  such  as  time  neces- 
sary for  meals  while  on  the  road,  meeting  trains,  waiting  for 
orders,  delays  on  account  of  congestion  of  traffic,  can  not  be  con- 
sidered as  time  off  duty,  although  during  such  detention  no 
active  service  whatever  may  be  required  of  such  employee. 

Of  course,  what  is  a  brief  interruption  is  a  relative  term;  in 
determining  what  a  brief  interruption  is  as  covered  by  this  in- 
struction you  will  take  into  consideration  what  I  have  already 
told  you.  You  can  underetand  if  a  man  was  engaged  in  a  ''tug 
of  war''  that  if  he  had  2  hours  and  45  minutes  off  it  would  be  a 
substantial  rest  from  that  occupation,  and  so  here  you  must  use 
your  practical  judgment  and  experience  as  men  in  determining 
whether  this  interruption  in  this  service  such  as  is  claimed  by  the 
defendant  was  of  substantial  benefit  for  the  purpose  that  Con- 
gress intended  this  law,  to  enable  the  men  to  revive  and  recu- 
perate and  rest,  so  that  they  might  renew  their  service  and  duty. 
After  an  employee  in  train  service  starts  on  his  trip  he  can  not  be 


126  HOURS  OF  SERVICE  ACT. 


said  to  be  off  duty,  within  the  meaning  of  the  law,  until  he  reaches 
the  end  of  his  run,  unless  before  reaching  his  destination  he  is 
released  from  all  service  in  connection  with  his  train  or  from  all 
responsibility  therefor  should  the  occasion  arise,  and  is  given  an 
unqualified,  bona  fide  release,  and  for  a  definite  and  substantial 
period. — CusJiman,  D.J. 
V.  S.  V.  Denver  c&  R.  G.  R.  Co.,  197  Fed.,  629. 

(a).  Employees  while  "deadheading"  on  freight  or  passenger  trains, 
f  relieved  from  all  responsiblity  in  connection  with  the  movement 
of  such  trains,  are  not  on  duty  within  the  purview  of  the  Act. 
''Deadheading.'^ — Employees     deadheading     on 
passenger  trains  or  on  freight  trains  and  not  required  to 
perform,  and  not  held  responsible  for  the  performance 
of,  any  service  or  duty  in  connection  with  the  movement 
of  the  train  upon  which  they  are  deadheading,  are  not 
while  so  deadheading  "on  duty''  as  that  phrase  is  used 
in  the  Act  regulating  the  hours  of  labor. — Adm.  Ruling 
No.  74. 
Osborne's  AdmW.  v.  Cincinnati,  N.  0.  cfe  T.  P.  Ry.  Co.,  164  S.  W.,  818. 
Court  of  Appeals  of  Kentucky,  March  24,  1914. 

Although  we  have  made  a  very  thorough  examination  of  the 
cases  involving  the  construction  of  this  Act,  we  have  not  found 
one  presenting  or  deciding  the  question  whether  an  employee 
who  is  "deadheading"  is  engagea  in  service  connected  with  the 
movement  of  any  train  within  the  meaning  of  the  Act. 

The  Interstate  [Commerce]  Commission,  however,  has  pro- 
mulgated rule  No.  74,  providing  that  "employees  'deadheading' 
on  passenger  trains  or  on  freight  trains  and  not  required  to  per- 
form, and  not  held  responsible  for  the  performance  of,  any 
service  or  duty  in  connection  with  the  movement  of  the  train 
upon  which  they  are  'deadheading,'  are  not,  while  so  'dead- 
heading '  '  on  duty '  as  that  phrase  is  used  in  the  Act  regulating 
the  hours  of  labor."  This  construction,  although  it  does  not 
have  the  binding  force  of  a  court  decision,  is  yet  entitled  to  great 
weight  on  account  of  the  important  duties  this  high  Commission 
exercises  in  administering  these  remedial  federal  statutes,  and 
we  concur  in  its  soundness  when  applied  to  the  facts  of  this 
case. —  GarroU,  J.,  p.  822. 

(b) .  The  service  of  an  employee  subject  to  the  Act,  preliminary  or  supple- 
mental to  his  regular  duties,  is  to  be  computed  in  his  period  on  duty. 
V.  S.  V.  Illinois  Central  R.  Co.,  180  Fed.,  630. 

District  Court,  Northern  District  of  Iowa,  Jime  23,  1910. 
The  question  here  is  as  to  the  effect  of  the  rule  of  the  com- 
pany requiring  men  to  report  30  minutes  before  the  leaving 
time  of  the  train  to  do  the  things  required  by  the  rule,  coupled 
with  the  fact  that  this  man  did  comply  with  that  rule. 

I  do  not  think  the  custom  of  the  company  not  to  strictly 
enforce  the  rule  makes  any  difference.  This  man  complied  with 
the  rule.  He  arrived  at  the  engine  30  minutes  before  the  leaving 
time  of  the  train,  and  was  actually  engaged  in  doing  the  things 
required  by  the  rule,  and  the  question  here  is  whether  he  was 
during  that  time,  within  the  meaning  of  the  Act,  actually  engaged 


SCOPE.  127 


in  or  connected  with  the  moving  of  that  train.  That  is  the  ques- 
tion here.  In  in y  opinion  this  m  an  was  on  duty,  within  the  mean- 
ing of  the  Act,  from  the  time  he  went  there  and  commenced  to 
supervise,  or  overlook,  that  engine  in  preparation  for  the  trip.  It 
does  not  make  any  difference  whether  he  was  j^aid  for  this  time 
or  not,  that  was  the  time  his  work  and  the  strain  on  him  began. 
The  work  of  an  engineer,  an  emploj^ee  of  the  railroad,  begins  when 
under  the  rule  of  the  company  he  is  there  and  is  at  work  in  con- 
nection with  the  preparation  of  the  engine  for  the  moving  of  the 
train.  He  must  look  over  that  engine.  He  must  see  that  it  is  oiled 
up.  He  niust  see  that  the  air  brakes  are  all  right.  He  must  move 
the  engine  down  over  the  tracks  and  across  the  switches  to  connect 
it  with  the  train.  And  in  my  opinion  he  is  on  duty,  within  the 
meaning  of  the  Act,  during  the  time  he  is  doing  these  things.  If 
he  goes  there  a  half  an  hour  before  the  time  to  start  to  do  these 
things,  during  the  time  he  is  there  doing  them  he  is  on  duty. 
That  is  my  view  of  it. —  Morris,  D.  J.,  pp.  630-631. 
U.  S.  V.  Chicago,  M.  &  P.  S.  Ry.  Co.,  195  Fed.,  783. 

District  Court,  Western  District  of  Washington,  April  29,  1912. 

Does  the  statutory  limitation  of  time  of  continuous  service 
applicable  to  engineers,  firemen,  conductors,  and  brakemen  em- 
ployed in  the  operation  of  trains  include,  or  exclude,  the  time 
on  duty  preceding  and  subsequent  to  the  time  of  service  in 
actual  operation  of  trains  between  the  terminal  points  at  which 
their  runs  are  commenced  and  ended  ? 

There  is  no  ambiguity  in  the  statute;  therefore,  it  does  not 
have  to  be  construed  in  order  to  ascertain  its  meaning.  It  is  man- 
datory in  declaring:  ''That  it  shall  be  unlawful  for  any  common 
carrier,  its  officers  or  agents,  subject  to  this  Act  to  require  or 
permit  any  employee  subject  to  this  Act  to  be  or  remain  on  duty 
for  a  longer  period  than  16  consecutive  hours." 

This  broad  rule  is  restricted  only  by  the  exceptions  speci- 
fied in  the  Act  itself.  These  include  cases  of  casualty  or  una- 
voidable accident  or  the  act  of  God  or  where  delay  was  the  result 
of  a  cause  not  known  to  the  carrier,  its  officer  or  agent  in  charge 
of  such  employees  at  the  time  when  they  leave  a  terminal  and 
crews  operating  wrecking  and  relief  trains,  and  the  court  is  not 
authorized  to  add  other  exceptions  by  construing  the  Act  in  a 
way  to  extend  the  duration  of  permissible  contmuous  service. 
An  employee  is  on  duty  when  he  is  at  his  post  in  obedience  to 
rules  or  requirements  of  his  superior  and  ready  and  wilUng  to 
work,  whether  actually  at  work  or  waiting  for  orders  or  for  the 
removal  of  hindrances  from  any  cause.  The  words  ''on  duty" 
appear  to  have  been  intelfigently  chosen  and  used  in  the  composi- 
tion of  the  statute  to  bar  aU  excuses  for  noncompliance  with  its 
requirements  by  any  pretext  of  misunderstanding  its  meaning. 
[U.  S.  V.  niinois  Central  R.  Co.,  180  Fed.,  QSO].—Hanford,  D,  /, 
p.  785. 
U.  8,  y.  Denver  <&  R.  G,  R.  Co.,  197  Fed.,  629. 

District  Court,  District  of  New  Mexico,  May  1,  1912. 

The  case  turns,  first,  upon  whether  in  computing  the  16-hour 
period  the  preparatory  service  of  15  minutes  is  mcluded,  and,  sec- 
ond, whether  the  55  minutes'  stop  at  Osier  broke  the  continuity 


128  HOURS  OF  SERVICE  ACT. 


of  the  service,  so  that  after  all  it  did  not  include  as  much  as  ^'16 
consecutive  hours/'  In  other  words,  the  decisive  question  is 
whether  the  crew  was  ''on  duty"  during  both  of  these  periods. 

It  is  doubtful  if  any  definition  of  the  words  ''on  duty"  can 
be  clearer  than  the  words  themselves.  Manifestly,  however,  they 
mean  to  be  either  actually  engaged  in  work  or  to  be  charged 
with  present  responsibility  for  such,  should  occasion  for  it  arise. 
Tested  by  this  definition,  the  crew  during  the  preparatory  15 
minutes  was  clearly  on  duty.  They  were  at  the  starting  point 
pursuant  to  a  rule  of  the  defendant  company  requiring  them  to 
be  there.  They  were  engaged  in  work  necessary  to  the  trip.  The 
conductor,  according  to  the  proofs,  was  getting  his  biUs  and  orders ; 
the  brakemen  were  looking  over  the  train  to  detect  defective  cars 
and  equipment  and  in  going  to  the  roundhouse  to  bring  the  engines 
and  to  couple  them  to  the  train.  With  all  of  these  unperformed 
the  train  could  not  have  moved.  .  With  some  unperformed  the 
train  would  probably  have  moved  only  to  destruction  for  lack  of 
orders  or  of  safe  equipment.  These  duties  were  quite  as  important 
as  those  after  the  tram  started  and,  contrary  to  what  counsel  con- 
tend, impress  us  as  constituting  quite  as  great  a  strain  upon  the 
nervous  and  physical  energies  as  arose  after  the  train  was  actually 
in  motion.  We  believe  such  to  have  been  as  much  in  the  congres- 
sional mind  in  declaring  what  length  of  duty  shall  call  for  rest  as 
those  connected  with  a  train  actually  moving.  Nor  does  it  de- 
tract from  this  view  that  the  men  were  paid  nothing  for  this  pre- 
liminary work.  The  defendant  can  hardly  be  heard  to  contend 
this  in  the  face  of  its  rule  requiring  this  very  service.  Presum- 
ably, however,  in  fixing  a  rate  of  compensation  beginning  in  terms 
only  with  the  starting  time  the  employees  and  the  railroad  took 
into  consideration  the  rule  just  mentioned,  so  that  after  all  this 
preliminary  work  was  not  really  done  gratuitously,  but  was 
merged  into  a  scale  of  wages  mutually  satisfactory  to  aU  con- 
cerned. At  any  rate,  labor  does  not  cease  to  be  such  because  not 
paid  for,  nor  does  duty  cease  to  exist  because  performed  without 
compensation  in  connection  with  duty  for  which  there  was  com- 
pensation.— Pofe,  D.  J.,  pp.  631-632.  [Cited  with  apparent 
approval  by  the  Supreme  Court  in  Missouri,  K.  <&  T.  By.  Co.  of 
Texas  v.  U.  S.,  231  U.  S.,  112]. 
U,  S.  V.  Kansas  City  Southern  Ry,  Co.,  189  Fed.,  471 ;  San  Pedrof 
L.  A.  (&.S.  L.  R.  Co.  V.  TJ.  S.,  213  Fed.,  326;  Oshorne's  Adm'r.y. 
Cincinnati,  N.  0.  cfc  T.  P.  Ry.  Co.,  164  S.  W.,  818;  U.  S.  v. 
Boston  c&  M.  R.  Co.,  D.  C,  D.  New  Hampshire,  Oct.  29,  1912, 
Aldrich,  D.  J.  [unreported];  V.  S.  v.  Northern  PaciHc  Ry.  Co., 
D.  C.,W.  D.Washington,  Feb.  13,  1914,  Cushman,  D.  J.  [unre- 
ported]. 

(c).   The  application  of   the  Act  to  employees  otherwise  within  its 
terms  is  not  to  be  evaded  by  a  commingling  of  their  duties  with 
respect  to  interstate  and  intrastate  operations. 
Baltimore  S  0.  R.  Co.  v.  /.  C  C,  221  U.  S.,  612. 
Supreme  Court,  May  29,  1911. 

But  the  argument  undoubtedly  involves  the  consideration 
that  the  interstate  and  intrastate  operations  of  interstate  car- 


SCOPE.  129 


riers  are  so  interwoven  that  it  is  utterly  impracticable  for  them 
to  divide  their  employees  in  such  manner  that  the  duties  of 
those  who  are  engaged  in  connection  with  interstate  commerce 
shall  be  confined  to  that  commerce  exclusively.  And  thus, 
many  employees  who  have  to  do  with  the  movement  of  trains 
in  interstate  transportation  are,  by  virtue  of  practical  necessity, 
also  employed  in  intrastate  transportation.     *     *     * 

If,  then,  it  be  assumed,  as  it  must  be,  that  in  the  further- 
ance of  its  purpose  Congress  can  limit  the  hours  of  labor  of 
employees  engaged  in  interstate  transportation,  it  follows  that 
this  power  can  not  be  defeated  either  by  prolonging  the  period 
of  service  through  other  requirements  of  the  carriers  or  by  the 
commingling  of  duties  relating  to  interstate  and  intrastate  oper- 
ations.— HugJies,  Justice,  pp.  618,  »  19. 
Northern  Pacific  Ry.  Co.  v.  State  of  Washington,  222  U.  S.,  370. 
Supreme  Court,  January  9,  1912. 

The  train,  although  moving  from  one  point  to  another  in 
the  State  of  Washington,  was  hauling  merchandise  from  points 
outside  of  the  State  destined  to  points  within  the  State  and 
from  points  within  the  State  to  points  in  British  Columbia,  as 
well  as  in  carrying  merchandise  which  had  originated  outside  of 
the  State  and  was  in  transit  thi'ough  the  State  to  a  foreign 
destination.  This  transportation  was  interstate  commerce, 
and  the  train  was  an  interstate  train,  despite  the  fact  that  it 
may  also  have  been  carrying  some  local  freight.  In  view  of 
the  unity  and  indivisibility  of  the  service  of  the  train  crew  and 
the  paramount  character  of  the  authority  of  Congress  to  regu- 
late commerce,  the  Act  of  Congress  was  exclusively  controlling. 
[Southern  Ry.  Co.  v.  U.  S.,  222  U.  S.,  20.]— White,  Chief  Justice , 
pp.  375-376. 
Erie  R.  Co.  v.  New  YorTc,  233  U.  S.,  671.  See  also: 
State  V.  Chicago,  M.  &  St.  P.  Ry.  Co.,  117  N.  W.,  686. 
Supreme  Court  of  Wisconsin,  September  29,  1908. 

The  direction  and  dispatching  of  every  train  on  an  interstate 
railway  necessarily  involves  knowledge  in  the  train  dispatcher  of 
all  other  trains  which  are  in  the  same  vicinity  at  the  same  time, 
and  also  abihty  to  control  such  other  trains.  An  interstate  train 
from  Milwaukee  to  Chicago  can  not  be  safely  forwarded  if,  under 
the  direction  of  a  separate  employee,  a  local  train  may  be  moving 
between  Milwaukee  and  Racine  over  the  same  track  at  the  same 
time,  or  nearly  so.  The  very  switching  at  local  stations  must  be 
within  the  knowledge  and  under  the  control  of  him  who  is  to 
decide  upon  and  direct  the  most  important  of  interstate  trans- 
portation. Obviously  division  of  authority  over  these  subjects 
would  be  frauglit  with  great  perils  and  delays  to  both  kinds  of 
transportation.  Hardly  any  act  of  a  train  dispatcher  on  a  busy 
railroad  can  be  conceived  which  does  not  affect  both  interstate 
and  domestic  commerce.  He  can  not  move  or  stop  the  most  dis- 
tinctively local  train  without  affecting  the  interstate  train,  or 
vice  versa.  No  extra ^or  special  can  be  put  on  the  division  with- 
50611—15 ^9 


130  HOimS  OF  SERVICE  ACT. 


out  adjustment  of  other  trains.  Of  course,  also,  every  interstate 
train  carries  some  purely  intrastate  freight  or  passengers.  Many 
purely  domestic  trains  carry  some  freight  or  passengers  in  transit 
to  extrastate  destination.  It  would  seem  that  any  severance  of 
control  over  State  from  interstate  trains  involved  so  much  of  con- 
fusion and  probability  of  danger,  and  its  possibility  even  is  so 
doubtful  and  experimental,  that  no  legislature  would  absolutely 
precipitate  it  without  careful  consideration  nor  without  provid- 
ing in  the  act  for  the  event  of  the  failure  of  such  experiments. 
For  this  reason  as  well  we  are  convinced  that  tlie  legislative  pur- 
pose involved  what  the  legislative  words  include,  the  regulation 
of  services  of  all  operators,  and  would  in  no  wise  be  satisfied,  even 
in  part,  by  a  restriction  to  those  whose  acts  affect  only  domestic 
commerce,  if,  indeed,  there  are  any  such. — Dodge,  J.,  pp.  690-691 . 

(d).  An  Employee  subject  to  the  Act  may  not  engage  in  any  railroad 
service,  howsoever  unconnected  with  the  movement  of  any  train, 
if   the  total  time    devoted   to  such  service  and   to  his   regular 
duties  exceeds  the  periods  of  service  permitted  by  the  statute. 
The  prime  purpose  of  this  law  is  to  secure  addi- 
tional safety  by  preventing  employees  from  working 
longer  hours  than  those  specified  in  the  Act.     There- 
fore a  telegraph  or  telephone  operator  who  is  employed 
in  a  night  and  day  ofhce  may  not  be  required  to  per- 
form duty  in  any  capacity  or  of  any  kind  beyond  nine 
hours  of  total  service  in  any  twenty-four  hour  period. — 
Adm.  Ruling  No.  287-e. 
Baltimore  cfc  0.  R.  Co.  v.  /.  C.  C,  221  U.  S.,  612. 
Supreme  Court,  May  29,  1911. 

If,  then,  it  be  assumed,  as  it  must  be,  that  in  the  furtherance 
of  its  purpose  Congress  can  limit  the  hours  of  labor  of  employees 
engaged  m  interstate  transportation,  it  follows  that  this  power 
can  not  be  defeated  either  by  prolonging  the  period  of  service 
through  other  requirements  of  the  carriers  or  oy  the  commin- 

fUng  of  duties  relating  to  interstate  and  intrastate  operations. — 
lughes,  Justice,  p.  619. 
San  Pedro,  L.  A.  &  S.  L.  R.  Co.  v.  U.  8.,  213  Fed.,  326. 
Circuit  Court  of  Appeals,  8th  Circuit,  March  27,  1914. 

It  is  to  be  noted  that  the  employees  within  the  statute  are 
those  "actually  engaged  in  or  connected  with  the  movement  of 
any  train,"  but  obviously  the  purpose  of  the  legislation  would  be 
defeated  if  they  might  be  required  or  permitted  hj  their  em- 
ployers to  occupy  the  hours  intended  for  rest  with  railroad 
service  of  another  kind.  The  particular  character  of  the  labor 
required  or  permitted  in  the  intervals  would  seem  immaterial. 
In  Baltimore  S  0.  R.  Co.  y.  I  .C.  C,  221  U.  S.,  612,  it  was  said: 
''The  length  of  hours  of  service  has  a  direct  relation  to  the 
efficiency  of  the  human  agencies  upon  which  protection  to  life 
and  property  necessarily  depends.  *  *  *  If,  then,  it  be 
assumed,  as  it  must  be,  that  in  furtherance  of  its  purpose  Con- 
gress can  Hmit  the  hours  of  labor  of  employees  engaged  in  inter- 
state transportation,  it  follows  that  this  power  can  not  be  defeated 


SCOPE.  131 


either  by  prolonging  the  period  of  service  through  other  reqfuire- 
ments  of  the  carriers  or  by  the  commingling  of  duties  relating  to 
interstate  and  intrastate  operations/^ — Hoolc,  C.  J,,  p.  328. 

TJ.  S.  V.  Grand  Trunk  Ry.  Co.  [unreported]. 

District  Courl,  District  of  New  Hampshire,  October  30,  1912. 
The  Government  says  it  is  not  open  to  an  employer,  or  a 
carrier,  to  work  the  man  a  substantial  part  of  9  hours  as  oper- 
ator, and  thru  lengthen  his  service  beyond  the  9  hours  bv  put- 
ting him  at  work  m  some  other  branch  of  the  service,  and  1  am 
inclined  for  the  purposes  of  this  case  to  adopt  that  view,  and 
construe  the  statute  as  meaning  that  where  a  substantial  service 
is  performed  by  the  employee  at  the  telegraph  and  he  uses  up  6 
of  the  9  hours,  that  whatever  service  he  does  after  that  in  the 
performance  of  duty  in  the  general  work  of  the  carrier  that  the 
employment,  taken  all  together,  should  not  exceed  9  hours. — 
AJdrich,  D.  J, 

U.  S.  V.  Chicago,  R.  I.  &  P.  Ry.  Co.  [unreported].  ^ 

District  Court,  Western  District  of  Mi^-souri,  March  5,  1914. 
Congress  intended  the  nine-hour  provision  to  apply  to  em- 
ployees of  a  certain  class  whose  employment  embraced  tne  duties 
enumerated  in  the  provi  o.  It  is  not  necessary,  however,  that 
such  employees  should  be  engaged  exclusively  and  continuou-ly 
in  the  discharge  of  the  prescribed  duties  of  di  patching  train  -  by 
the  use  of  the  telegraph  or  the  telephone,  if  sucn  is  a  part  of  their 
work,  and  if  they  must  hold  themselves  in  readiness  while  on 
duty  to  perform  such  service  whenever  the  occasion  may  arise. 
*  *  *  So  I  think  it  may  be  assumed  that  so  far  as  the  spirit 
of  this  law  is  concerned,  these  men  are  on  duty  from  the  time 
their  watch  begins;  that  their  work  of  operating  the  electric 
staff  machine,  which  is  but  a  mechanical  form  of  transmitting 
train  orders,  would  weary  them  and  diminish  their  alertness, 
perhaps  quite  as  much  as  though  they  were  actually  engaged  in 
using  the  telegraph  or  telephone.  At  any  rate,  I  think  it  clear 
that  if,  after  having  been  engaged  in  such  employment,  the 
machine  should  fail  to  work  and  they  should  proceed  with  dis- 
patching, reporting,  transmitting,  receiving,  and  delivering  or- 
ders by  telegraph,  and  should  continue  in  ser^ace  thus  for  an 
aggregate  of  more  than  nine  hours,  the  law  would  be  violated. — 
Van  ValkenhurgTi,  D.  J. 

See  also  U,  S.  v.  Atchison,  T.  cfc  S.  F,  Ry.  Co.,  177  Fed.,  115. 

(i).  A  fireman  or  other  employee  subject  to  the  Act,  while  engaged 
in  watching  an  engine,  is  on  duty  within  the  purview  of  the  Act. 
San  Pedro,  L.  A.  &  S.  L.  R.  Co.  v.  U.  S.,  213  Fed.,  326. 
Circuit  Court  of  Appeals,  8th  circuit,  March  27,  1914. 

It  is  contended  that  the  excess  service  here  was  of  another 
kind,  and  being  at  the  end  of  the  16  hours  is  therefore  im- 
material, as  it  does  not  appear  when  thereafter  the  fireman  re- 
turned to  work.  That  is  too  narrow  a  view  of  the  legislation, 
since  it  ignores  the  effect  upon  their  efficiency  of  excessive  hours 
of  service  of  any  kind  without  rest.  But,  taldng  the  narrower 
view,  it  can  not  be  seriously  doubted  that  the  statute  would  be 


132  HOURS  OF  SERVICE  ACT. 


violated  if  the  other  service  immediately  preceded  the  16  con- 
secutive hours  in  a  train  movement.  The  attentiveness  of  mind 
so  essential  to  safety  in  transportation  might  be  as  effectively 
impaired  by  loss  of  rest  while  oiling  machinery  in  the  shops  or 
attending  an  engine  on  a  siding  as  while  serving  on  a  moving 
train.  Likewise  if  the  train  service  aggregating  16  hours  in  a 
24-hour  period  were  divided  by  intervening  service  of  another 
kind.  [U.  S.  v.  Chicago,  M.  cfc  P.  S.  Ry.  Co,,  197  Fed.,  624.] 
If  this  were  not  so  the  requirements  of  a  minimum  of  10  hours' 
rehef  after  1 6  consecutive  hours  of  duty  and  of  but  8  hours'  reUef 
after  an  aggregate  of  16  hours  of  duty  out  of  24  would  often  work 
inconsistently.  The  shorter  rest  might  foUow  the  longer  labor  if 
the  employee  could  without  restraint  be  shifted  in  his  work.  We 
also  think  a  railroad  company  can  not  lawfully  require  or  permit 
an  employee,  within  the  statute,  who  has  served  tne  16  hours  to 
turn  then  to  other  duty  without  the  prescribed  rehef.  [  JJ.  S.  v. 
Great  Northern  Ry.  Co.,  206  Fed.,  838.]  The  10-hour  and  8-hour 
periods  for  rest  were  proportioned  to  16  hours  of  duty,  not  to 
16  hours  of  one  kind  plus  an  indefinite  number  of  another.  This 
conclusion  makes  it  unnecessary  to  consider  whether  a  fireman 
who,  after  16  consecutive  hours  of  service  as  such,  watches  his 
engine  on  a  siding  and  keeps  it  in  a  state  of  preparedness  for  his 
successor  is  performing  a  duty  in  connection  with  the  movement  of 
the  train.  [JJ.  S.  v.  Missouri  Pacific  Ry.  Co.,  206  Fed.,  847.]— 
Eoolc,  C.  J.,  pp.  328-329. 
Great  NoHhem  Ry.  Co.  v.  U.  S.,  211  Fed.,  309. 

Circuit  Court  of  Appeals,  9th  Circuit,  February  24,  1914. 
The  plaintiff  in  error  contends  that  while  their  fireman  was 
acting  as  engine  watchman  on  the  locomotive,  for  the  period 
during  which  their  freight  train  and  locomotive  were  tied  up  on 
the  siding,  the  employee  was  not  a  person  ' '  actually  engaged  in 
or  connected  with  the  movement  of  any  train"  within  the 
meaning  of  those  words  as  used  in  the  Act  of  Congress;  and, 
further,  that  the  final  8  hours  during  which  their  employee  was 
engaged  as  and  performing  the  duties  of  engine  watchman  on 
their  locomotive,  and  while  it  was  tied  up  and  sidetracked  on 
their  siding  as  aforesaid,  constituted  no  portion  of  the  period  of 
duty  covered  by  the  Act  of  Congress,  ana  that  so  far  as  the  final 
period  of  8  hours  is  concerned  the  Act  does  not  appl  v . 

With  respect  to  the  first  of  these  contentions  we  do  not  think 
that  the  narrow  interpretation  insisted  upon  by  the  plaintiff  in 
error  can  be  applied  to  the  language  of  the  Act  above  quoted. 
We  can  not  believe  that  it  was  the  intention  of  Congress  that 
the  word  '^movement"  should  be  restricted  to  the  actual  resolu- 
tion of  the  wheels  of  a  train  or  locomotive  engaged  in  interstate 
commerce;  for  if  that  interpretation  were  the  correct  one  obvi- 
ously the  very  object  of  the  Act — the  promotion  of  the  safety  of 
employees  and  travelers  upon  railroads — would  be  frustrated. 
The  sidings  of  a  railroad  are  a  part  of  its  system  and  are  indis- 
pensable to  the  proper  operation  and  mov^ement  of  its  trains. 
Tying  up  on  a  siding  for  any  purpose,  whether  to  await  orders 
or  for  the  passing  of  other  trams  or  for  any  other  purpose  con- 
nected witn  the  transportation  of  freight  or  passengers,  is  as 


SCOPE.  13a 


much  a  part  of  the  general  movement  of  a  train  as  the  actual 
running  thereof  on  the  main  hne  and  at  scheduled  periods. 
The  fact  that,  as  in  this  case,  the  delay  was  for  a  period  of  8 
consecutive  hours,  does  not  operate  to  make  it  any  the  less  a 
delay  occurring  in  the  ordinary  course  of  the  general  movement 
of  the  trains  of  the  plaintiff  in  error.  Such  delays  are  a  part  of 
the  general  operations  whereby  traffic  over  railroads  is  conducted. 
Following  this  contention  of  the  plaintiff  in  error  to  its  logical 
conclusion,  the  result  would  be  that  the  freight  train  and  loco- 
motive in  this  case  could  have  been  sidetracked  and  tied  up  for 
an  hour  at  a  time,  at  intervals  of  an  hour,  and  its  employee 
required  to  remain  on  duty  as  fireman  and  as  engine  watchman, 
alternately,  for  an  indefinite  period,  yet  it  would  not  have  been 
guilty  of  a  violation  of  the  Act  under  consideration. 

It  is  next  contended  by  the  plaintiff  in  error  that  the  final  8 
hours  during  which  their  employee  was  engaged  in  performing  the 
duties  of  engine  watchman  on  their  locomotive,  while  it  was  tied 
up  and  sidetracked  on  their  siding,  constituted  no  portion  of  the 
period  of  duty  covered  by  the  Act.  The  duties  of  an  engine 
watchman,  as  appears  from  the  agreed  statement  of  facts  in  this 
case,  consisted  in  watching  the  quantity  of  water  in  the  boiler  of 
the  engine  which  he  was  employed  to  watch,  and  in  replenishing 
the  same  so  that  the  engine  could  always  have  an  adequate  supply 
of  water  whereby  steam  could  be  adequately  and  efficiently  and 
promptly  generated,  so  that  when  the  engme  was  again  to  be 
moved  it  could  move  under  its  own  steam  without  delay  incident 
to  waiting  until  the  engine  could  have  again  developed  sufficient 
steam;  and  likewise  to  watch  the  fire  in  the  fire  box  of  the  engine, 
and  to  replenish  the  same  with  fuel,  so  that  the  fire  would  be 
kept  up  to  such  an  extent  that  steam  would  be  generated,  so  that 
when  it  was  next  desired  to  move  the  engine  the  same  could 
move  without  delay  by  means  of  the  steam  so  generated  by  means 
of  the  fire.  But  wherein  did  these  duties  of  the  employee  as 
engine  watchman  differ  from  his  duties  as  fireman  ?  In  no  essen- 
tial particular  as  we  view  it.  It  is  true  that  when  a  locomotive  is 
actually  running  the  duties  of  a  fireman  with  respect  to  keeping  a 
proper  amount  of  water  in  the  boiler  and  a  proper  amount  of  fire 
m  tne  fire  box  may  be  more  strenuous  and  occupy  his  time  to  a 
greater  extent  than  when  the  locomotive  is  sidetracked  and  tied 
up  on  a  sidmg;  but  that  would  be  merely  a  question  of  degree  and 
would  not  affect  the  general  nature  of  the  duties  of  his  occupa- 
tion. The  all-important  fact  not  to  be  lost  sight  of  in  this  case 
is  that  the  employee  was  required  and  permitted  to  continue  to 
apply  himself  to  and  perform  for  a  period  of  8  consecutive  hours 
(after  16  consecutive  hours  of  labor)  duties  very  similar  to  those 
which  he  had  been  performing  for  the  16  hours  immediately 
before,  without  being  granted  any  period  during  which  he  might 
have  an  opportunity  for  rest.  The  argument  of  the  plaintiff  in 
error  in  connection  with  the  contention  now  under  consideration 
is  that  the  safety  of  its  employees  and  of  the  travelers  upon  its 
railroad  was  not  imperiled  by  the  employee  remaining  on  duty 
the  additional  period  of  8  hours  as  engine  watchman.  Conceding 
that  this  might  be  true  as  to  the  employees  and  travelers  upon 


134  HOURS  OF  SERVICE  ACT. 


other  trains,  the  fact  would  still  remain  that  had  the  fireman, 
Burgen,  during  this  additional  period  while  he  was  acting  as 
engine  watchman,  through  fatigue  and  general  debility  due  to 
excessive  hours  of  labor,  permitted  the  water  in  his  locomotive 
to  become  so  low  that  an  explosion  would  have  been  caused 
thereby,  his  own  safety,  and  perhaps  the  safety  of  the  other  mem- 
bers of  the  crew  of  the  tram,  who  had  during  that  period  retired 
to  rest  upon  the  train,  would  have  been  imperiled. 

There  is  another  and  a  much  stronger  argument  which  we 
think  fully  frupports  the  views  which  we  have  stated.  The  Act 
prohibits  any  common  carrier  from  requiring  or  permitting  any 
' employee '^  to  be  and  remain  on  dutjr  for  a  longer  period  than 
16  consecutive  hours.  There  is  no  distinction  made  in  the  Act  as 
to  any  particular  duty  or  duties  which  an  employee  may  be  per- 
forming during  the  wliole  time,  or  any  portion  of  the  time,  he  is 
on  duty.  In  this  case,  when  Burgen's  duties  were  changed  from 
those  of  fireman  to  those  of  engine  watchman,  he  continued  to  be 
no  less  an  employee  of  the  railroad  company.  In  other  words, 
had  he  been  employed  as  an  engine  watchman  during  the  entire 
period  of  24  consecutive  hours,  there  could  be  no  question  but  that 
such  employment  would  have  constituted  a  violation  of  the  Act. 
The  fact  that  during  the  24-hour  period  he  was  employed  for  16 
hours  as  fireman  and  for  8  hours  as  engine  watchman  does  not 
lessen  the  offense. —  Morrow,  C.  J.,  pp.  311-313.  [Affirming  the 
judgment  of  the  District  Court  for  tne  District  of  Idaho  in  TJ.  S, 
V.  Great  Northern  Ry.  Co.,  206  Fed.,  838.] 
Northern  Pacific  Ry.  Co.  v.  U.  S.,  213  Fed.,  577. 

Circuit  Court  of  Appeals,  9th  Circuit,  May  4,  1914. 

The  contention  of  the  plaintiff  in  error  is  that,  as  in  each  of 
the  present  instances,  the  train  and  engine  were  sidetracked 
within  16  hours,  and  their  crews  laid  off  for  rest,  and  that  there- 
after the  respective  firemen  were  placed  in  charge  of  then*  re- 
spective engines  only  for  the  purpose  of  keeping  up  the  fires  and 
steam  and  otherwise  watching  the  engines;  they  were  not  dur- 
ing such  time  actually  engaged  in  or  actually  connected  with  the 
movement  of  a  train,  and  therefore  were  not  permitted  or  re- 
quired by  the  railroad  company  to  be  or  remain  on  duty  for  a 
longer  period  than  16  hours  within  the  meaning  of  the  Act  of 
Congress;  and  the  decision  of  the  Supreme  Court  in  the  case  of 
Baltimore  &  0.  R.  Co.  v.  /.  C.  C,  221  U.  S.,  612,  is  cited  by 
counsel  as  sustaining  that  contention.  We  cau  not  take  that 
view  of  that  case.  In  so  far  as  it  bears  upon  the  question  we 
have  here  we  think  the  proper  conclusion  to  be  drawn  from  it  is 
quite  the  reverse  and  sustains  our  conclusion  that  the  intent  of 
tne  Act  was  and  is  to  compel  rest  for  each  member  of  the  train's 
crew  at  the  termination  of  the  16-hour  period,  to  the  end  that  his 
next  and  succeeding  hours  of  service  may  be  efficient.  For  in 
the  case  cited  the  court,  at  page  619,  distinctly  says:  ^'The 
length  of  hours  of  service  has  direct  relation  to  the  efficiency  of 
the  human  agencies  upon  which  protection  of  life  and  property 
necessarily  depends.  This  has  been  repeatedly  emphasized  in 
official  reports  of  the  Interstate  Commerce  Commission  and  is 


SCOPE.  135 


a  matter  so  plain  as  to  require  no  elaboration.  In  its  power 
suitably  to  provide  for  the  safety  of  employees  and  travelers 
Congress  was  not  limited  to  the  enactment  of  laws  relating  to 
mechanical  appliances,  but  it  was  also  competent  to  consider,  and 
to  endeavor  to  reduce,  the  dangers  incident  to  the  strain  of  ex- 
cessive hours  of  duty  on  the  part  of  engineers,  conductors,  train 
dispatchers,  telegraphers,  and  other  persons  embraced  within 
the  class  defined  by  the  Act.  And  in  imposing  restrictions 
having  reasonable  relation  to  this  end  there  is  no  interference 
with  liberty  of  contract  as  guaranteed  by  the  Constitution. 
[Chicago  B.  &  Q.  Ry.  Co.  v.  McGuire,  219  U.  S.,  549.]  If,  then, 
it  be  assumed,  as  it  must  be,  that  in  the  furtherance  of  its  pur- 
pose Congress  can  limit  the  hours  of  labor  of  employees  engaged 
in  interstate  transportation,  it  follows  that  this  power  can  not  be 
.  defeated  either  by  prolonging  the  period  of  service  through  other 
requirements  of  the  carriers  or  by  the  commingling  of  duties 
relating  to  interstate  and  intrastate  operations.''  [See  also 
U.  S.  V.  Great  Northern  Ry.  Co.,  206  Fed.,  838;  U.  S.  v.  Missouri 
Pacific  Ry.  Co.,  206  Fed.,  847.1 

That  the  present  case  does  not  come  within  either  of  the 
provisions  of  the  Act  declaring  that  it  "shall  not  apply  in  any 
case  of  casualty  or  unavoidable  accident  or  the  act  of  God;  nor 
where  the  delay  was  the  result  of  a  cause  not  known  to  the  car- 
rier or  its  officer  or  agent  in  charge  of  such  employee  at  the  time 
said  employee  left  a  terminal,  and  which  could  not  have  been 
foreseen"  is  obvious,  if  for  no  other  reason,  because  the  uncon- 
tradicted evidence,  as  weU  as  the  answer  of  the  defendant  com- 
Eany  itself,  shows  that  each  of  the  trains  in  question  was  stopped 
y  direction  of  the  railroad  company,  sidetracked,  and  their 
respective  crews  laid  off  for  rest  within  16  hours  from  the  time 
thev  left  Missoula  for  the  very  purpose  of  complying  with  the 
said  statute,  excepting  only  the  two  named  firemen,  who  were 
continued  at  a  duty  which  the  company  claims  was  not  within 
the  inhibition  of  the  law;  the  mistake  made  was  its  own  mistake 
in  continuing  one  of  each  of  the  crews — the  fireman — at  the  duty 
of  watching  the  engines. — Ross,  C.  J.,  pp.  580-581.  [Afl5rming 
the  judgment  of  the  District  Court  for  the  District  of  Mont  anal. 
U.  S.  V.  Missouri  Pacific  Ry.  Co.,  206  Fed.,  847. 

District  Court,  District  of  Kansas,  March  24,  1913. 

From  the  statement  made  it  is  obvious  the  question  pre- 
sented is:  Shall  the  time  spent  by  the  fireman  as  watchman  in 
charge  of  his  engine  being  drawn  by  another  engine  to  the  ter- 
minal station  be  computed  in  the  hours  of  service  as  contem- 
plated by  the  statute  2     *     *     * 

While  the  question  presented  is,  so  far  as  I  find,  of  first 
impression,  yet,  considering  the  remedial  nature  and  humane  pur- 
pose of  the  Act,  the  character  of  the  duties  imposed  upon  such 
watchman,  as  stipulated  by  the  parties,  and  all  the  facts  and  cir- 
cumstances presented  by  the  record  to  which  consideration 
should  be  given,  I  am  forced  to  the  conclusion  the  time  so  spent 
by  a  locomotive  fireman  in  watching  his  engine  must  be  com- 
puted as  hours  of  service  within  the  purview  of  the  Act,  and  for 
the  following,  among  other  reasons  which  might  be  given. 


136  HOURS  OF  SERVICE  ACT. 


The  humane  feature  of  the  statute  being  considered,  it  must 
be  thought  the  Congress  intended,  at  or  before  the  expiration  of 
the  16-hour  period  of  service  provided  therein,  an  employee 
engaged  in  the  movement  of  the  train  would,  from  exhaustion  of 
body  and  mind,  be  in  need  of  relaxation  and  rest,  freed  from  all 
responsibility  and  care  for  the  safety  of  himself  and  others. 
That  the  cab  of  a  moving  engine  in  which  such  watchman  is  re- 
quired to  ride  is  not  such  place  as  in  the  absence  of  any  duty  to 
be  performed  is  conducive  to  that  rest  and  relaxation  required 
by  the  statute,  is  a  matter  of  common  experience  and  knowledge. 
However,  when  to  this  seK-evident  fact,  as  in  this  case,  there  is 
superadded  the  duties  impo-ed  on  one  so  situate,  as  by  the  parties 
stipulated,  the  question  of  relaxation,  rest,  and  sleep  requu*ed  by 
the  statute  must  be  almost  if  not  altogether  impossible. 

Again,  aside  from  the  humane  purpose  of  the  Act,  regarded 
from  the  standpoint  of  the  welfare  of  the  employee  himself,  and 
looking  alone  to  the  safety  of  the  employee  and  others,  it  is 
evident  the  nature  of  the  duties  required  of  such  watchman,  if 
from  loss  of  vigilance  through  exhaustion  or  sleep,  he  should 
permit  the  water  in  the  boiler  to  be  entirely  consumed,  the 
danger  irom  wreck  of  the  train  or  other  disaster  by  explosion, 
involving  himself  and  others,  is  apparent. 

All  things  considered,  I  am  of  the  opinion  it  must  be  held 
such  watchman  is  in  a  manner  actually  engaged  in  connection 
with  the  movement  of  the  train,  and  to  such  extent  as  brings  the 
time  so  consumed  within  the  hours  of  service  as  contemplated 
by  the  Act.  If  such  construction  of  the  statute  is  correct,  and  it 
shall  impose  a  burden  too  severe  on  railroad  companies,  the 
remedy  lies  with  the  law-making  power,  not  the  courts. — Pollocky 
D.  J.,  pp.  848,  849. 
IJ.  S.  V.  Great  Northern  Ry.  Co.,  D.  C,  D.  Minnesota,  June  4,  1913, 
Willard,  D.  J.  [unreported].  See  also  Osborne^ s  Adm'r.  v.  Cincin- 
nati, N.  0.  &  T.  P.  Ry.  Co.,  164  S.  W.,  818. 

(a).  And  it  is  immaterial  whether  such  service  as  engine  watchman 
precedes,  intervenes,  or  succeeds  the  service  as  fireman  or  as  other 
employee  so  subject  to  the  Act. 

V.  S.  V.  Great  Northern  Ry.  Co.,  206  Fed.,  838. 

District  Court,  District  of  Idaho,  July  9,  1913. 

Now,  the  defendant's  position  is  that  the  time  Burgen  was 
engaged  in  watching  the  engine  is  not  to  be  counted,  because 
during  such  period  he  was  performing  a  dut);^  having  no  con- 
nection with  the  movement  of  any  train.  Plainly  in  that  view 
the  test,  and  the  only  test,  is  the  relation  of  the  specific  service 
to  the  movement  of  trains.  Logically,  therefore,  it  is  wholly 
immaterial  whether  the  service  as  watchman  follows  or  precedes 
the  service  as  fireman  or  intervenes.  It  has  no  more  connection 
with  the  movement  of  trains  in  the  one  case  than  in  the  other, 
and  if  want  of  such  connection  operates  to  exclude  it  from  con- 
sideration it  is  to  be  excluded  the  same  in  one  case  as  in  another. 
*  *  *  True,  the  violation  of  the  spirit  of  the  statute  is  more 
apparent  in  such  a  case,  where  the  service  as  watchman  precedes 
the  service  as  fireman,  than  where,  as  here,  it  follows  such  serv- 


SCOPE.  137 


ice,  but  the  difference  is  one  of  degree  onl;y^,  and  the  courts  can 
not  with  nicety  distinguish  between  service  which  materially 
impairs  and  that  which  impairs  only  to  an  inappreciable  extent 
the  efficiency  of  a  trainman.  That  24  hours  of  continuous  service 
without  sleep  is  unnatural  can  not  be  gainsaid,  and  that  if  persisted 
in  for  any  considerable  length  of  time,  even  with  liberal  inter- 
vals of  rest,  it  might  injuriously  affect  the  trainman's  efficiency 
is  not  unreasonable  to  believe. — Dietrich,  D.  J.,  p.  840-841. 

— (b).    Duties  of  an  engine  watchman  defined. 

U.  S.  V.  Great  Northern  Ry,  Co.,  206  Fed.,  838. 
District  Court,  District  of  Idaho,  July  9,  1913. 

Burgen,  however,  was  permitted  and  required  to  remain 
upon  the  engine  continuously  thereafter  until  6  o'clock  the  next 
morning,  during  which  time  ho  was  on  duty  as  an  engine  watch- 
man, charged  with  the  performance  of  no  other  duty  or  work 
than  that  of  engine  watchman.  These  duties  consisted  of 
watching  the  quantity  of  water  in  the  boiler  of  the  engine  and 
in  replenishing  the  same,  so  that  the  engine  would  always  have 
an  adequate  supply  of  water  whereby  steam  could  be  efhciently 
and  promptly  generated,  so  that  when  the  engine  was  again  to 
be  moved  it  could  be  moved  under  its  own  steam  and  without 
the  delay  incident  to  waiting  until  steam  coul^l  be  generated 
afresh,  and  in  watching  the  fire  in  the  firebox  and  replenishing 
the  same  with  fuel,  so  that  there  would  always  be  sufficient  fire 
to  generate  steam. — Dietrich,  D.  J.,  p.  839-840. 

U.  S.  y.  Missouri  Pacific  Ry.  Co.,  206  Fed.,  847. 

District  Court,  District  of  Kansas,  March  24,  1913. 

As  stated  in  the  stipulation  of  the  parties,  the  duties  of  the 
fii-eman  so  engaged  as  watchman  in  charge  of  his  engine  are  to- 
keep  a  certain  amount  of  Gxe  in  the  furnace,  to  see  the  water 
does  not  run  too  low  in  the  boiler,  and  that  a  certain  amount  of 
steam  pressure  is  preserved.  Aside  from  such  duties,  the  engine 
employed  in  drawing  the  train  is  in  charge  of  another  crew,  as 
is  tne  movement  of  the  train  itself. — PollocJc,  D.  J.,  pp.  848-849. 

(e).  The  words  "consecutive"  and  "continuous",  as  used  in  the  Act, 
are  not  restricted  to  unbroken  intervals  of  time. 
U.  S.  V.  Northern  Pacific  Ry.  Co.  [unreported]. 

District  Court,  Western  District  of  Washington,  Feb.  13,  1914. 
You  wiU  understand  what  the  words  ''consecutive"  and 
'4n  the  aggregate"  mean.  This  law  prohibits  men  working 
consecutively  for  one  of  these  roads  over  16  hours;  that  means 
1  hour  after  another  -without  break,  without  substantial  break. 
Where  it  says  16  hours  in  the  aggregate  it  contemj)lates  where 
there  has  been  a  substantial  break  m  the  service,  in  the  duty 
that  they  have  been  discharging.  You  can  understand  that  in 
determining  what  a  substantial  break  in  the  service  is,  or  the 
performance  or  the  discharge  of  the  duty  is,  you  should  take 
mto  consideration  what  the  purpose  of  the  law  was.     The  pur- 

Eose  of  this  law  was  that  it  was  considered  when  men  that  nad 
een  on  duty  16  hours  consecutively  or  16  hours  in  the  aggre- 
gate, in  order  to  render  them  fit  to  discharge  the  duty  of  rail- 
roading, it  was  necessary  that  they  should  have  in  one  instance 


138  HOTIRS  OF  SERVICE  ACT. 


10  hours  off  duty  for  rest  and  recuperation,  and  in  the  other 
instance  8  hours  off  duty.  Therefore,  to  determine  what  may 
be  a  substantial  break  in  the  hours  of  service  it  is  your  duty  to 
consider  whether  the  break  was  sufficient  in  length  of  time  and 
under  circumstances  which  would  allow  the  men  to  gain  some 
rest  or  recuperation.  You  understand  what  that  means.  You 
were  here  in  court  when  we  took  recesses  during  the  trial  of 
cases  for  certain  purposes,  and  in  schools  children  take  recesses, 
are  permitted  to  take  recesses  for  certain  purposes,  and  in  these 
matters,  the  operation  of  these  trains,  having  in  mind  what  the 
purpose  of  the  law  was,  that  the  trainmen  in  order  to  be  suffi- 
ciently alert  and  wide-awake  and  active  in  mind  and  in  body, 
so  as  to  be  entrusted  with  the  handUng  of  these  trains,  that  they 
should  not  be  required  to  be  on  duty  more  than  16  hours  con- 
secutively, or  16  hours  in  the  aggregate  in  the  other  case. — 
Oushman,  D.  J. 
U.  S,  V.  Chicago,  M.  cfc  P.  S.  Ry.  Co.,  197  Fed.,  624. 

(i).  A  respite  from  dnty  so  brief,  or  granted  under  snch  circumstances, 
as  to  preclude  the  rest  and  recuperation  contemplated  by  the  Act, 
even  though  for  a  definite  and  predetermined  interval,  does  not 
break  the  continuity  of  service. 
U.  S.  V.  Chicago,  M.  S  P.  S.  Ry.  Co.,  197  Fed.,  624. 

District  Court,  Eastern  District  of  Washington,  April  10,  1912. 
The  crew  was  allowed  from  30  to  4.5  minutes  for  breakfast 
and  about  one  hour  each  for  the  midday  and  evening  meals. 
At  meal  time  the  crew  was  relieved  from  duty  and  a  watchman 
placed  in  charge  of  the  traiu.  *  *  *  Nor  should  the  brief 
periods  allowed  for  meals  be  deducted  from  the  time  of  ser\ace 
in  order  to  break  its  continuity.  The  statute  uses  the  terms 
"sixteen  consecutive  hours,"  and  ** continuously  on  duty"; 
and,  while  literally  speaking,  '^ consecutive"  means  succeeding 
one  another  in  regular  order,  with  no  interval  or  break,  and  the 
word  ''contiuuously"  means  substantially  the  same,  yet  it  is 
manifest  that  no  such  strict  or  literal  meaning  of  these  expressions 
waa  intended.  *  *  *  I  can  not  beUeve  that  by  the  expres- 
sions ''sixteen  consecutive  hours"  and  ''continuously  on  duty" 
Congress  intended  to  include  only  those  who  are  employed  for  16 
hours  without  interruption  for  meals  or  otherwise.  Congress 
was  no  doubt  mindful  of  the  fact  that  no  laboring  man  works 
for  16  consecutive  hours,  or  is  on  duty  continuously  for  that 
period  without  food  or  drink,  except  in  cases  of  dire  necessity, 
and  the  Act  should  not  be  so  restricted.  It  may  be  said  that 
trainmen  are  on  duty  and  subject  to  call  during  meal  hours,  but 
this  is  only  because  such  is  the  will  of  their  employers.  If  a 
railroad  company  may  relieve  its  employees  from  service  during 
meal  hours,  it  may  also  refieve  them  from  service  every  time  a 
freight  train  is  tied  up  on  a  side  track  waiting  for  another  train, 
and  thus  defeat  the  very  object  the  le^slature  had  in  view.  The 
brief  interruptions  for  meals  were  "trifling  interruptions,"  in  the 
language  of  the  court  in  the  Atchison  Case  [220  U.  S.,  37]. — RudJcin, 
D.  J.,  pp.  626,  627,  628.  [Cited  with  apparant  approval  by  the 
Supreme  Court  in  Missouri,  K.  <&  T-  Ry-  Co.  of  Texas  v.  TJ.  S. 
231  U.  S.,  112.] 


SCOPE.  139 


U.  S.  V.  NoHhem  Pacific  Ry.  Co.,  213  Fed.,  539. 

District  Court,  Eastern  District  of  Washington,  April  21,  1914. 
The  sole  question  presented  for  decision  is,  therefore,  does 
a  definite  lay  on  or  release  from  duty  for  a  period  of  1  hour  and  30 
minutes,  under  the  circumstances  stated,  break  the  continuity 
of  the  service  within  the  meaning  of  the  law  ?  I  am  of  the  opinion 
that  it  does  not.  In  the  case  of  77.  S.  v.  Chicago,  M.  &  P.  S. 
Ry.  Co.,  197  Fed.,  624,  I  held  that  a  lay  off  of  from  30  to  45 
minutes  for  breakfast  and  of  about  1  hour  each  for  the  midday 
and  evening  meals  did  not  break  the  continuity  of  the  service. 
I  further  held  in  the  same  case  that  an  indefinite  lay  off  of  3  hours 
while  the  train  crew  was  awaiting  the  arrival  of  a  helper  engine 
at  a  small  way  station  did  not  break  the  continuity  of  the  service. 
This  decision  was  cited  with  apparent  appro\  al  in  the  case  of  Mis- 
souri, K.  &  T.  Ry.  Co.  of  Texas  v.  V.  S.,  231 II.  S.,  112.  That  case, 
it  seems  to  me,  is  controlling  here.  The  purpose  of  the  statute  is 
plain,  and  it  must  be  so  construed  as  to  promote  its  policy.  The 
hours  of  service  of  railway  trainmen  are  long  at  best,  leaving  only 
8  hours  for  rest  and  recreation,  and  if  this  brief  period  can  be 
broken  into  fragments  the  purpose  and  policy  of  the  law  will  be 
entirely  frustrated.  If  a  train  crew  may  be  laid  off  for  an  hour 
and  a  half  at  one  point  to  suit  the  con\  enience  or  necessities  of  the 
company,  it  may  oe  laid  off  for  a  like  period  at  another,  and  the 
members  of  the  crew  thus  wholly  depiived  of  any  substantial 
period  for  either  sleep  or  rest.  If  this  crew  had  not  been  released 
from  duty  at  Auburn,  the  members  would  have  been  compelled 
to  remain  idle  until  the  time  of  departure  arrived,  and  the  release 
for  the  brief  period  allovxd  by  the  company  permitted  them  to  do 
little  else.  The  release  was  of  no  benefit  to  the  crew  and  could 
subserve  no  substantial  purpose  except  to  obviate  the  penalty 
imposed  by  law.  Perhaps  it  can  not  be  said  as  a  matter  of  law 
in  all  cases  whether  a  release  from  duty  for  a  fixed  period  of  time 
will  or  will  not  be  sufhcient  to  break  the  continuity  of  the  service. 
No  doubt  in  extreme  cases  the  court  may  declare  as  a  matter  of 
law  that  a  given  period  is  so  short  as  not  to  break  the  continuity 
of  the  serv^ice,  or  that  another  period  is  so  long  as  to  break  the 
continuity  of  the  service;  but  between  these  extremes  there  is 
a  twilight  zone,  w^here  the  question  becomes  a  mixed  one  of  law 
and  fact.  This  case,  however,  has  been  submitted  to  the  court 
for  decision,  and  whatever  inferences  are  to  be  drawn  from  the 
admitted  facts  must  be  drawn  by  the  court,  and  under  the  ad- 
mitted facts  I  am  of  the  opinion  that  the  plain  spirit  and  policy 
of  the  law  has  been  violated. — Rudkin,  2>.  ./.,  pp.  540-541. 

Oshome's  Admr.  v.  Cincinnati,  N.  0.  cfe  T.  P.  Ry.  Co.,  1 64  S.  W.,  818; 
U.  S.  V.  Northern  Pacific  Ry.  Co.,  D.  C,  W.  D.  Washington, 
Feb.  13,  1914,  Cushman,  D.  J.  [unreported].     See  also: 

NoHh  Carolina  R.  Co.  v.  Zachary,  232  U.  S.,  248. 
Supreme  Court,  February  2,  1914. 

Again,  it  is  said  that  because  deceased  had  left  his  engine 
and  was  going  to  his  boarding  house,  he  was  engaged  upon  a 
personal  errand,  and  not  upon  the  carrier's  business.  Assuming 
(what  is  not  clear)  that  the  evidence  fairly  tended  to  indicate 
the  boarding  house  as  his  destination,  it  nevertheless  also  appears 


140  HOXTRS  OF  SERVICE  ACT. 


that  deceased  was  shortly  to  depart  upon  his  nin,  having  just 

Erepared  his  engine  for  the  purpose,  and  that  he  had  not  gone 
e^^ond  the  Umits  of  the  railroad  yard  when  he  was  struck. 
There  is  nothing'to  indicate  that  this  brief  visit  to  the  boarding 
house  was  at  all  out  of  the  ordinary,  or  was  inconsistent  with  his 
duty  to  his  employer,  it  seems  to  us  clear  that  the  man  was 
still  ''on  duty,"  and  employed  in  commerce,  notwithstanding 
his  temporary  absence  from  the  locomotive  engine.  [Missouri, 
K  cfe  T.  By.  Co.  of  Texas  v.  U.  S.,  231  U.  S.,  U2].~-Pitney, 
Justice,  p.  260. 

— (ii).  And  a  respite  from  duty  even  for  a  reasonably  extended  interval, 
does  not  break  the  continuity  of  service  unless  tke  duration  of  such 
interval  is  definitely  anticipated  and  predetermined  at  its  inception. 

V.  S.    V.  Chicago,  M.  cfc  P.  S.  Ry.  Co.,  197  Fed.,  624. 

District  Court,  Eastern  District  of  Washington,  April  10,  1912. 
The  train  crew  in  question  ran  from  vSeattle  to  I^aconia,  and 
on  the  16th  day  of  June,  1911,  left  the  former  station  at  about 
1.30  a.  m.  At  some  point  on  the  line  they  were  to  be  met  by  a 
helper  to  assist  them  up  the  mountain  grade.  They  arrived  at 
the  point  where  the  helper  was  to  join  them  at  9.55  a.  m.  Upon 
their  arrival  there  the  helper  was  delayed  for  some  cause,  and  the 
trainmaster,  or  some  officer  of  the  railway  company,  immediately 
relie\ed  the  crew  from  duty  until  the  helper  should  arrive. 
This,  as  it  afterwards  transpired,  was  a  period  of  about  three 
hours,  or  not  until  1  o'clock  p.  m.  The  crew  then  proceeded 
upon  its  way,  and  arrived  at  its  destination  at  about  7.25  p.  m. 
If  the  three  hours  lay-off  is  deducted  from  the  time  of  service  the 
crew  was  not  employed  for  16  consecutive  hours,  but  if  not  so 
deducted  the  time  of  service  exceeded  that  limited  by  law.  If 
this  crew  had  been  laid  off  for  a  definite  period  of  three  hours  at 
a  terminal  or  other  place  where  the  crew  might  rest,  such  lay-off 
would  no  doubt  break  the  continuity  of  the  service.  Atclii- 
son  Case  [220  U.  S.,  37],  supra.  But  such  was  not  the  case  here. 
The  crew  was  laid  off  for  an  indefinite  period,  awaiting  the 
arrival  of  a  delayed  engine.  They  did  not  know  at  v/hat  moment 
the  train  might  move,  and  had  no  place  to  go  except  to  a  bunk 
house  or  remain  in  the  caboose.  They  chose  the  latter  course. 
This,  in  my  opinion,  was  a  trifling  interruption. — RudHn,  D.  J., 
pp.  628-629..  [Cited  with  apparent  approval  by  the  Supreme 
Court  in  Missouri,  K,  cfc  T.  Ry.  Co.  of  Texas  v.  U.  S.,  231  U.  S., 
112.J 

Z7.  S.  V.  Denver  &  R.  G.  R,  Co.,  197  Fed.,  629. 

District  Court,  District  of  New  Mexico,  May  1,  1912. 

But  it  is  said  by  defendant  that,  however  this  may  be,  there 
was  no  consecutive  service  of  16  hours  because  of  the  layout  of 
55  minutes  at  Osier.  This  latter,  as  we  have  seen,  was  in  order 
that  east-bound  train  No.  442  might  pass.  The  record  shows 
that  the  hour  of  arrival  of  this  latter  was  uncertain,  except  that 
it  seems  to  have  been  momentarily  expected.  It  might  come 
in  a  few  minutes  or  it  might  not  arrive  m  an  hour.  Pending  its 
arrival  the  train  here  involved  was  rendered  safe  by  being  put 
into  a  siding  and  the  switch  locked.     As  a  matter  presumably  of 


SCOPE.  141 


economy,  the  headlight  was  extinguished.  All  this  done,  the 
crew  retired  to  the  caboose,  the  brakemen  to  utilize  the  uncer- 
tain interval  in  a  nap,  the  conductor  in  reading.  There  was, 
however,  no  release  of  the  crew  by  the  train  dispatcher,  and 
their  pay  covered  the  time  they  were  held  at  Osier.  It  is  said 
that  upon  this  state  of  facts  the  crew  ceased  to  be  on  duty  during 
the  wait  upon  the  siding.  This,  however,  is  clearly  untenable. 
True,  as  the  conductor  in  effect  testified,  they  ceased  to  be  re- 
sponsible during  this  period  for  the  operation  of  the  train  for 
it  was  not  in  motion.  It  is  evident,  however,  that  they  became 
instead  intrusted  with  its  custody.  It  was  further  their  duty 
to  know  immediately  of  the  arrival  of  No.  442,  whether  this 
occurred  in  10  minutes  or  in  55,  and  immediately  upon  such 
arrival  they  were  charged  with  the  responsibility  of  relighting 
the  headlight,  leaving  the  siding,  and  proceeding  to  destination. 
As  long  ago  as  Milton  it  was  said:  ''They  also  serve  who  only 
stand  and  wait.''  It  detracts  nothing  irom  this  great  truth 
as  applied  to  the  present  situation  that  the  tired  crew  at  this 
hour  of  the  night  utilized  the  wait  in  sleep  or  in  a  book.  They 
were  there  on  pay;  they  were  there  in  charge  of  the  train;  they 
were  there  subject  to  active  duty  as  soon  as  No.  442  whistled 
for  the  station.  Suppose  that  the  latter  train  instead  of  taking 
55  minutes  to  arrive  had  arrived  in  only  10.  Would  it  be  con- 
tended that  such  an  interval  would  have  broken  the  continuity 
of  duty?  And  yet  the  principle  in  each  case  is  precisely  the 
same.  We  are  of  opinion  that  such  a  view  of  the  statute  as  is 
here  contended  for  by  the  defendant  would  ill  accord  with  the 
purpose  of  the  law  as  declared  in  its  title,  "To  promote  the  safety 
of  employees  and  travelers  upon  railroads  by  limiting  the  hours 
of  service  of  employees  thereon."  A  delay  under  the  circum- 
stances here  disclosed  constituted  at  most  sim])ly  "a  trivial 
interruption,"  such  as  under  TJ.  S.  v.  Atchison,  T.  <&  S.  F.  Ry. 
Co.,  220  U.  S.,  37,  ''will  not  be  considered."  To  hold  otherwise 
will  be  practically  to  nullify  the  statute. — Pope,  D.  J.,  p.  632. 
[Cited  with  apparent  approval  by  the  Supreme  Court  in  Missourij 
K  <&  T.  Ry.  Co.  of  Texas  v.  V.  S.,  231  U.  S.,  112.] 

U.  S.  V.   Northern  Pacific  Ry.   Co.,  D.   C,   W.  D.   Washington, 
Feb.  13,  1914,  Cushman,  D.  J.  [unreported].     See  also: 

Missouri;  K.  &  T.  Ry.  Co.  of  Texas  v.  TJ.  S.,  231  U.  S.,  112. 
Supreme  Court,  November  10,  1913. 

One  of  the  delays  was  while  the  engine  was  sent  off  for  water 
and  repairs.  In  the  meantime  the  men  were  waiting,  doing 
nothing.  It  is  argued  that  they  were  not  on  duty  during  this 
period,  and  that  if  it  be  deducted,  they  were  not  kept  more  than 
16  houi-s.  But  they  were  under  orders,  liable  to  be  called  upon 
at  any  moment,  and  not  at  liberty  to  go  away.  They  were  none 
the  less  on  dutv  when  inactive.  Their  duty  was  to  stand  and 
wait.  [TJ.  S.  V.  Chicago,  M.  &  P.  S.  Ry.  Co.,  197  Fed.,  624; 
TJ.  S.  V.  Denver  <&  R.  G.R.  Co.,  197  Fed.,  629].  Holmes,  Justice, 
p.  119.  [Affirming  the  judgment  of  the  Circuit  Court  of  Appeals 
for  the  5th  Circuit  and  of  the  District  Court  for  the  Eastern  Dis- 
trict of  Texas  (both  decisions  unreported).] 


142  HOURS  OF  SERVICE  ACT. 


(hi).  Such  a  release  from  service,  in  order  to  suspend  the  operation 
of  the  Act,  must  be  granted  in  good  faith;  at  a  time  and  place 
and  under  circumstances  that  permit  of  rest  and  recuperation; 
must  be  for  a  definite  and  substantial  interval  of  time ;  and  must 
be  predetermined  at  the  inception  of  such  period. 
U.  S.  V.  Northern  Pacific  By.  Co.  [unreported]. 

District  Court,  Western  District  of  Washington,  Feb.  13,  1914. 

An  employee  goes  on  duty,  within  the  meaning  of  the  law, 
at  the  time  he  reports  for  work,  as  required  by  the  rules  of  the 
company,  and  begins  the  work  of  looking  after  his  train  and  seeing 
that  it  is  in  proper  condition  for  road  service.  He  remains  on 
duty  while  he  is  in  charge  of  his  train,  performing  service  in  and 
about  the  same,  or  held  responsible  for  the  performance  of  such 
service  should  the  occasion  therefor  arise. 

An  employee  is  not  off  duty  until  he  is  relieved  from  all 
responsibility  as  to  his  train  and  becomes  his  own  free  agent  to 
go  and  do  as  he  pleases.  Brief  interruptions,  such  as  time 
necessaiy  for  meals  while  on  the  road,  meeting  trains,  waiting 
for  orders,  delays  on  account  of  congestion  of  traflic,  can  not  be 
considered  as  time  off  duty,  although  during  such  detention  no 
active  service  whatever  may  be  required  of  such  employee. 

Of  course,  what  is  a  brief  interruption  is  a  relative  term;  in 
determining  what  a  brief  interruption  is  as  covered  by  this 
instruction  you  will  take  into  consideration  what  I  have  akeady 
told  you.  You  can  understand  if  a  man  was  engaged  in  a  "  tug 
of  war"  that  if  he  had  2  hours  and  45  minutes  off  it  would  be  a 
substantial  rest  from  that  occupation,  and  so  here  you  must  use 
your  practical  judgment  and  experience  as  men  in  determining 
whether  this  interruption  in  this  service  such  as  is  claimed  by 
the  defendant  was  of  substantial  benefit  for  the  purpose  that 
Congress  intended  this  law,  to  enable  the  men  to  revive  and  re- 
cuperate and  rest,  so  that  they  might  renew  their  service  and 
duty.  After  an  employee  in  train  service  starts  on  his  trip  he 
can  not  be  said  to  be  off  duty,  within  the  meaning  of  the  law, 
until  he  reaches  the  end  of  his  rim,  unless  before  reaching;  his 
destination  he  is  released  from  all  service  in  connection  with  his 
train  or  from  all  responsibihty  therefor  should  the  occasion  arise, 
and  is  given  an  unqualified,  bona  fide  release,  and  for  a  definite 
and  substantial  period. 

A  honafide  release  is  one  given  to  the  employee  for  the  pur- 
pose of  giving  him  an  opportunity  for  rest,  and  not  given  merely 
to  cover  a  delay  at  a  certam  place  which  the  company  knows  must 
be  encounteied,  hoping  thereby  to  evade  the  law.     *     *     * 

If  it  appeared  to  the  company  that  a  certain  train  would 
probably  be  delayed  at  a  station  for  a  certain  time,  by  reason  of 
a  congested  condition  of  traffic  or  on  account  of  having  to  coal 
the  engine  by  baud,  and  the  carrier  notified  the  employees  on 
that  train  that  they  were  released  for  a  certain  time,  which  was 
approximately  the  time  the  company  saw  they  would  be  delayed 
at  that  place,  and  the  only  reason  for  such  release  was  for  the 
pm-pose  of  extending  the  time  within  which  the  employees 
might  operate  their  train,  and  neither  the  purpose  nor  effect  of 


SCOPE.  143 


the  release  was  to  afford  the  trainmen  any  rest,  the  jury  would 
be  warranted  in  finding  that  such  release  was  not  honajide  but 
merely  a  subterfuge. — Cushman,  D.  J. 

6.  The  service  of  operators  or  other  employees  handling  train  orders  in 
continuously  operated  offices  is  limited  by  the  Act  to  9  hours  in 
a  24-hour  period ;  that  of  such  employees  in  offices  operated  only 
during  the  daytime  to  13  hours  out  of  24;  except  in  cases  of 
emergency,  when  the  service  of  either  class  of  employees  may  be 
extended  4  hours  on  not  exceeding  3  days  in  any  week. 

*  *  *  Provided,  That  no  operator,  train  dispatcher,  or  other  em- 
ployee who  by  the  use  of  the  telegraph  or  telephone  dispatches,  reports, 
transmits,  receives,  or  delivers  orders  pertaining  to  or  affecting  train 
movements  shall  be  required  or  permitted  to  be  or  remain  on  duty 
for  a  longer  period  than  nine  hours  in  any  twenty-four-hour  period 
in  all  towers,  offices,  places,  and  stations  continuously  operated  night 
and  day,  nor  for  a  longer  period  than  thirteen  hours  in  all  towers, 
offices,  places,  and  stations  operated  only  during  the  daytime,  except 
in  case  of  emergency,  when  the  employees  named  in  this  proviso  may 
be  permitted  to  be  and  remain  on  duty  for  four  additional  hours  in  a 
twenty-four-hour  period  on  not  exceeding  three  days  in  any  week: — 
Sec.  2,  Act  March  4,  1907  [S4  Stat,  at  L.,  1415,  1416.'] 

U.  S.  V.  Missouri,  K.  &  T.  Ry.  Co.,  208  Fed.,  957. 

District  Court,  District  of  Kansas,  January  13,  1913. 

In  so  providing  it  classified  the  offices  in  which  telegraphic 
operators  engaged  in  handling  train  orders  worked  as  day  offices 
only  and  those  open  for  the  transaction  of  such  business  during 
both  the  day  and  night.  As  to  the  latter  class,  it  limited  the 
hours  of  service  of  such  operators  to  9  out  of  24.  As  to  the 
former  class,  where  the  office  was  open  for  business  only  during 
the  daytime,  it  limited  the  hours  of  service  of  such  operators 
to  13,  unless  in  case  of  emergency  the  period  of  service  should  be 
extended  to  17  hours  without  violating  the  statute.  Such  ap- 
pears to  be  the  reasonable  construction  of  the  Act  and  the  one 
given,  at  least  in  j)rinciple,  from  those  courts  in  which  it  has 
received  consideration.  [  Z7.  S.  v.  Atchison,  T.  c&  S.  F.  Ry.  Co,, 
220  U.  S.,  37;  U.  S.  v.  St.  Louis  S.  W.  Ry.  Co.  of  Texas,  189  Fed., 
954.]—Polhclc,  D.  J.,  p.  959. 

(a).  "Places,"  as  used  in  the  Act,  defined, 

''Towers,  offices,  places,  and  stations." — The 
phrase  "towers,  offices,  places,  and  stations"  is  inter- 
preted to  mean  particular  and  definite  locations.  The 
purpose  of  the  law  and  of  the  proviso  for  nine  hours 
of  service  may  not  be  avoided  by  erecting  ofiices, 
stations,  depots,  or  buildings  in  close  proximity  to 
each  other  and  operating  from  one  a  part  of  the  day 
while  the  other  is  closed,  and  vice  versa.  The  statute 
is  remedial  in  its  intent  and  must  have  a  broad  con- 
struction so  that  the  purpo-e  of  the  Congress  may  not 
be  defeated. — Adm.  Ruling  No.  287-f. 


144  HOURS  OF  SERVICE  ACT. 


See  also: 

*Z7.  S.  V.    Missouri  Pacific  Ry.   Co.  [unreported]. 

District  Court, Western  District  of  Missouri,  May  8,  1913. 
Furthermore,  the  different  words  used  cover  every  sort  of 
a  connection  with  the  transmission  of  such  orders,  not  limited 
to  the  mere  issuance  of  them,  or  mere  handling  of  them,  as  one 
from  whom  they  originally  emanated,  or  his  agent.  But  it 
would  seem  to  be  anybody  who  dispatches,  reports,  transmits, 
receives,  or  dehvers  such  orders,  or  those  in  any  way  having  any- 
thing to  do  with  the  putting  of  such  orders  into  commission  and 
final  execution.  And  this  is  made  to  my  mind  more  certain 
from  the  fact  that  the  ''places"  where  these  employees  work  as 
disclosed  clearly  contemplate  that  such  a  per.  on  who  is  within 
the  purview  of  this  Act  is  not  limited  to  the  regular  places  where 
operators  and  train  dispatchers  and  tho  e  of  the  specific  char- 
acter insisted  iipon  by  defendant  work;  but  the  Act  says,  towers 
and  offices  and  stations  and  places.  So  that  very  clearly  any 
place  where  any  man  works,  and  has  anything  to  do  with  the 
use  of  a  telephone  in  the  dispatching,  reporting,  tran-^mitting, 
receiving,  or  deUvery  in  any  sense  of  orders  is  meant  by  the 
Act. —  Van  VaTkeriburgh,  D.  J. 

7.  The  proviso  in  section  2  of  the  Act  applies  to  all  offices  in  which 
train  orders  are  handled  affecting  the  movement  of  interstate 
traffic,  irrespective  of  the  number  or  the  frequency  of  such  orders. 
U.  8.  V.  Atchison,  T.  <&  S.  F.  Ry.  Co.,  220  U.  S.,  37. 

Supreme  Court,  March  13,1911. 

The  antithesis  is  between  places  continuously  operated  ni^ht 
and  day  and  places  operated  only  during  the  daytime.  We  thmk 
that  the  Government  is  right  in  saying  that  the  proviso  is  meant 
to  deal  with  all  offices,  and  if  so,  we  should  go  farther  than  other- 
wise we  might  in  holding  offices  not  operated  only  during  the 
daytime  as  falling  under  the  other  head.  A  trifling  interruption 
would  not  be  considered,  and  it  is  possible  that  even  three  hours 
by  night  and  three  hours  by  day  would  not  exclude  the  office 
from  all  operation  of  the  law,  and  to  that  extent  defeat  what  we 
believe  was  its  intent. — Holmes,  Justice,  pp.  43-44. 
v.  S.  V.  Atlantic  Coast  Line  R.  Co.,  211  Fed.,  897. 

Circuit  Court  of  Appeals,  4th  Circuit,  February  3,  1914. 

The  terms  employed  are  plainly  intended  to  include  every 
sort  of  place  where  train  orders  are  handled,  however  infre- 
quently, by  telegraph  or  telephone.  There  is  nothing  to  suggest 
that  the  permitted  hours  on  duty,  whether  9  or  13,  are  deter- 
mined by  the  number  of  train  orders  handled,  if  they  are  handled 
at  all,  or  by  the  proportion  of  time  which  the  employee  spends  in 
that  particular  service.  Surely  the  descriptive  words,  "towers, 
offices,  places,  and  stations,"  negative  any  intention  to  confine 
the  9-hour  limitation  to  those  offices,  however  designated,  in 

*  The  judgment  of  the  District  Court  in  this  proceeding  was  reversed  by  the 
Circuit  Court  of  Appeals  for  the  8th  Circuit,  in  Missouri  Pacific  Ry.  Co.  v.  ^7.  5.,  211 
Fed.,  893,  but  the  scope  of  the  word  "places,"  as  defined  by  the  District  Court,  is 
apparently  unaffected  by  the  order  of  reversal. 


SCOPE.  145 


which  the  principal  work  of  the  operator  is  connected  with  the 
movement  of  trams.  In  short,  we  deem  it  beyond  dispute  that 
the  classification  of  an  office  is  fixed  by  the  length  of  time  it  is 
kept  open,  and  not  in  the  least  by  the  nature  of  the  duties  per- 
formed, if  only  those  duties  include  the  handling  of  train  orders 
as  occasion  may  require. — Knapp,  G.  J.,  p.  900. 

(a).  The  term  "orders,"  as  used  in  the  Act,  comprehends  every  com- 
munication of  information  or  instruction  relative  to  the  movement 
of  any  train. 

U.  S.  V.  Houston  B.  d;  T.  Ry.  Co.,  205  Fed.,  344. 

Circuit  Court  of  Appeals,  5th  Circuit,  May  5,  1913. 

It  is  contended  on  behalf  of  the  railroad  company  that  the 
word  ''orders"  in  the  statute  must  be  construed  to  mean  what 
the  railroads  technically  call  ''train  orders";  that  is,  such  orders 
as  emanate  from  the  train  dispatcher's  office  and  are  reduced  to 
writing  and  handed  to  the  conductor  and  engineer  of  a  train.  We 
can  not  agree  with  this  contention.  To  do  so  would  be  to  pervert 
the  plain  meaning  oi  the  statute.  An  order  affecting  train  move- 
ments may  be  given  by  a  wave  of  the  hand  or  the  flash  of  a  lan- 
tern, and  its  disobedience  might  cause  as  dire  consequences  as  the 
failure  to  obey  a  written  message.  Necessarily,  an  order  affect- 
ing train  movements  can  be  given  by  any  subordinate  having  to 
do  with  trains  and  switches  such  as  a  towerman. 

The  raih'oad  fuither  contends,  however,  that  the  telephone 
between  these  towers  is  not  used  to  transmit  "orders"  in  any 
sense  of  the  word.  Regarding  this,  it  is  evident,  from  the  testi- 
mony of  the  towerman  quoted  above,  that  they  use  the  telephone 
to  repeat  signals  from  the  trainmen,  which  indicate  the  routing  of 
the  train  as  originally  made  by  the  train  master.  That  they  give 
information  over  it  that  trains  have  started,  on  receipt  of  which 
information  the  other  towerman  must  throw  switches,  line  up 
tracks,  and  hold  other  trains,  as  a  matter  of  duty  and  without 
discretion  on  his  part,  and  that  they  run  trains  in  both  directions 
over  a  single  track  and  instruct  the  other  towermen  by  the  tele- 
phone as  to  holding  traffic.  It  is  therefore  evident  that  these 
towermen  use  the  telephone  to  dispatch,  report,  transmit,  receive, 
and  deliver  orders  appertaining  to,  or  affecting,  train  movements. 
To  say  that  these  towermen  only  used  the  telephone  for  the  giv- 
ing of  information,  not  covered  by  the  statute,  would  be  the 
merest  sophistry.  Indeed,  it  is  difficult  to  conceive  how  any- 
thing could  be  a  more  imperative  order  affecting  train  move- 
ments than  for  one  towerman  to  notify  another  that  he  had 
started  a  train,  at  the  same  time  telling  him  to  hold  all  traffic  in 
the  opposite  direction  over  the  same  track. — Foster,  D.  J".,  pp. 
347-348. 

U.  S.  y.  Cleveland,  C  C.  &  St.  L.  Ry.  Co.  [unreported]. 

District  Court,  Southern  District  of  Ohio,  December  12,  1911. 
These  two  men,  Davidson  and  Betts,  were  employed  as 
switchmen  at  the  switches  you  have  heard  described,  both  orally 
and  by  illustration  on  the  blackboard.  There  is  no  dispute  that 
they  received  communications  relative  to  the  movement  of  trains 
and.  received  them  by  telephone.  Their  end  of  the  telephone  was 
60611—15 10 


146  HOURS  OF  SERVICE  ACT. 


at  what  has  been  called  the  "shanty,"  at  or  near  the  switches. 
It  was  there  that  the  communications  were  received,  and  so  it 
may  fairly  be  said  that  that  was  a  place  where  they  receive  com- 
munications, which  were,  in  effect,  orders.  That  is  using  ths 
word  "order"  in  its  ordinary  plain  meaning,  as  we  would  all  un- 
derstand from  the  use  of  the  word  what  its  meaning  is.  And  so, 
under  the  testimony  here,  it  would  seem  as  if,  when  its  ordinary 
plain  meaning  is  given  to  the  word  "order"  or  "orders,"  that  the 
defendant  had  failed  to  comply  with  the  law. — Hollister,  D.  J. 
*  U.  S.  V.  Missouri  Pacific  Ry.  Co.  [unreported]. 

District  Court,  Western  District  of  Missouri,  May  8,  1913. 

Now,  the  term  "order"  as  used  here  can  not  be  limited  to  an 
interpretation  placed  upon  it  by  the  railroad  itself.  It  can  not  be 
limited  to  any  formal  kind  of  an  order,  any  order  reduced  to 
^vriting,  originating  in  any  specific  form,  and  put  in  circulation 
in  any  specific  form;  but  it  is  any  kind  of  an  order  which  means 
a  direction,  something  emanating,  for  that  purpose  at  least,  from 
a  controlling  authority,  which  another  man,  who  receives  it,  is 
bound  to  and  will  recognize  and  obey.  Any  order  of  that  kind 
is  the  kind  of  an  order  that  the  law  is  broad  enough  to  cover,  and 
I  do  not  think  that  a  highly  remedial  Act  of  this  nature  should  be 
limited  to  any  specific  course  of  business,  or  to  any  narrow 
method  of  operation,  but,  on  the  contrary,  that  the  law  should 
be  broad  enough  to  adapt  itseK  to  anything  reasonably  and  fairly 
within  the  implication  of  its  terms,  and  coming  fairly  and  reason- 
ably within  the  spirit  and  object  that  the  law  was  intended 
to  effect  and  that,  to  my  mind,  would  certainly  be  anything 
that  affected  the  movement  or  pertained  to  the  movement 
of  the  train  in  any  particular  in  connection  with  interstate  com- 
merce.    *     *     * 

In  other  words,  I  believe  that  any  order  or  any  direction  or 
communication  by  telephone  or  telegraph  which  has  the  operative 
effect  of  an  order  which  is  to  be  followed  and  obeyed  by  the  em- 
ployees of  the  company  is  an  order  which  the  terms  of  this  law 
are  broad  enough  to  cover  and  the  spirit  of  the  law  fully  covers. 
[Citmg  U.  S.  V.  Houston B.  &  T.  Ry.  Co,,  205  Fed.,  SU]—VanVal' 
Jcenburgh,  D.  J. 
But  see: 
Z7.  S,  V.  Chicago,  R.  I.  &  P.  Ry.  Co.  [unreported]. 

District  Court,  Western  District  of  Missouri,  March  5,  1914. 

The  second  point  for  consideration  is  whether  defendant's 
employees  are  telegraph  operators,  on  duty  within  the  meaning 
of  the  proviso,  by  reason  of  the  alleged  statement  that  "if  the 

*The  judgment  of  the  District  Court  in  this  pocceding  was  reversed  by  the 
Circuit  Court  of  Appeals  for  the  8th  Circuit,  in  Missouri  Pacific  Ry.  Co.  v.  U.  S., 
211  Fed.,  893,  but  in  reviewing  the  scope  of  the  term  '^orders/'  as  defined  by  the 
District  Court,  this  expression  by  the  Court  of  Appeals  is  to  be  noted: 

In  other  words,  Congress  intended  the  9-ho  ir  provision  to  apply  to  employees  whose  primary  duty 
was  to  dispatch,  report,  transaiit,  receive,  or  deliver  orders  pertaining  to  or  affecting  train  move- 
ments. We  do  not  mean  by  this  that  the  word  "orders"  should  be  limited  to  technical  train  orders 
described  in  what  are  known  as  standard  rules  for  the  raove:nent  of  trains.  Congress  was  dealing 
with  a  class  of  employees  engaged  primarily  in  a  particular  ser\dce,  and  the  mere  form  of  tlie  order 
pertaining  to  or  affecting  train  movements  is  immaterial  if  it  is  dispatched,  reported,  transmitted, 
received,  or  delivered  by  the  use  of  the  telegraph  or  telephone,— CarZand,  C.  J.,  p.  896. 


SCOPE.  147 


said  electric  staff  machine  so  installed  at  the  station  of  Winthrop; 
Missouri,  had  become  out  of  repair  or  failed  to  work,  it  would 
have  been  the  duty  of  the  said  M.  M.  Whalen  and  W.  K.  Cousins, 
respectively,  under  the  direction  of  the  chief  dispatcher  of  the 
defendant,  by  the  use  of  the  telegraph,  to  dispatch,  report, 
transmit,  receive,  and  deliver  orders  pertaining  to  or  affecting  the 
movement  of  defendant's  trains  engaged  in  interstate  commerce 
into  and  out  of  the  said  station  of  Winthrop,  Missouri."  If  the 
statement  respecting  their  duties  had  ended  here,  I  should  say 
that  they  were  employees  within  the  meaning  of  the  proviso, 
whose  consecutive  hours  of  service  should  be  limited  to  9.  *  *  * 
As  a  matter  of  fact,  the  record  presents  no  instance  of  an  em- 
ployee ti-ansmitting  orders  by  telephone  or  telegraph  who 
worked  beyond  the  9-hour  period.  The  machines  have  never 
yet  failed  to  work.  *  *  *  j^  the  face  of  this  declaration  the 
presumption  of  innocence  should  be  indulged,  and  a  concrete 
violation  must  be  awaited. —  Van  ValkenhurgTi,  D.  J. 

8.  Tlie  classification  of  an  office  as  ** continuously  operated"  or  "oper- 
ated only  during  the  daytime"  is  determined  by  the  length  of 
time  it  is  kept  open,  and  not  by  the  character  of  the  service  therein 
performed,  provided  only  that  such  service  comprehends  the  han- 
dling of  train  orders  as  occasion  may  require. 
U.  S.  V.  Atlantic  Coast  Line  R.  Co.,  211  Fed.,  897. 

Circuit  Court  of  Appeals,  4th  Circuit,  February  3,  1914. 

The  answer  to  tms  argument  is  twofold.  In  the  first  place, 
we  find  nothing  in  the  language  of  the  Act  to  support  such  a  dis- 
tinction. The  terms  employed  are  plainly  intended  to  include 
every  sort  of  place  where  tram  orders  are  handled,  however  infre- 
quently, by  telegraph  or  telephone.  There  is  nothing  to  suggest 
that  the  permitted  hours  on  diity,  whether  9  or  13,  are  determined 
by  the  number  of  train  orders  handled,  if  they  are  handled  at  all, 
or  by  the  proportion  of  time  which  the  employee  spends  in  that 
particular  service.  Surely  the  descriptive  words,  ^'towers, 
offices,  places,  and  stations,"  negative  any  mtention  to  confine 
the  9-hour  limitation  to  these  offices,  however  designated,  in 
which  the  principal  work  of  the  operator  is  connected  with  the 
movement  of  trains.  In  short,  we  deem  it  beyond  dispute  that 
the  classification  of  an  office  is  fixed  by  the  length  of  time  it  is 
kept  open,  and  not  in  the  least  by  the  nature  of  the  duties  per- 
formed, if  only  those  duties  include  the  handling  of  train  orders 
as  occasion  may  require.—  Kn/ipp,  C.  J.,  p.  900. 
See  also  U.  S.  v.  Atchison,  T.  &  S.  F.  Ry.  Co.,  177  Fed.,  115. 

(a).  An  office  is  "continually  operated,"  within  the  purview  of  the  Act, 
if  it  is  kept  open  for  such  a  number  of  hours  in  the  aggregate  as 
necessarily  to  include  a  material  or  substantial  portion  of  the  night. 
''Continuously   Operated."  —  The   Commission 
interprets  the  phrase  ''continuously  operated  night  and 
day"   as  applying  to   aU  offices,  places,  and  stations 
operated  during  a  portion  of  the  day  and  a  portion  of 
the  night  a  total  ot  more  than  thirteen  hours. 

The  phrase  "operated  only  during  the  daytime" 
refers  to  stations  which  are  operated  not  to  exceed  thir- 


148  HOTTES  OF  SEBVICE  ACT. 


teen  hours  in  a  twenty-four  hour  period,  and  is  not  con- 
sidered as  meanino^  that  the  operator  thereat  may  be 
employed  only  during  the  daytmie. — Adm.  Ruling  No. 
287-g: 
U.  S.  y.  AUantic  Coast  Line  R.  Co.,  211  Fed.,  897. 

Circuit  Court  of  Appeals,  4th  Circuit,  Februarv  3,  1914. 

It  is  conceded  tnat  an  office  need  not  Uterally  be  kept  open 
every  minute  of  the  24  hours  in  order  to  be  witnin  the  9-hour 
restriction.  But  if  it  may  be  closed  for  one  or  more  substantial 
intervals  of  time  and  still  remain  in  the  9-hour  class,  where  shall 
the  line  of  division  be  drawn?  In  the  Atchison  Case,  above 
cited,  the  office  was  shut  from  noon  to  3  p.  m.,  and  from  mid- 
night to  3  a.  m.,  or  6  hours  in  all  out  of  the  24,  and  the  Supreme 
Court  strongly  intimated,  though  the  point  was  not  directly 
involved,  that  it  should  be  classed  as  a  9-hour  office,  because  the 
proviso  was  meant  to  deal  with  all  offices,  and  therefore  "we 
should  go  further  than  otherwise  we  might  in  holding  offices  not 
operated  only  during  the  daytime  as  falUng  under  the  other 
head."  But  where  is  the  logical  place  to  stop?  The  words 
** operated  only  during  the  daytime  are  quite  as  much  entitled 
to  be  made  enective  as  the  words  '* continuously  operated  night 
and  dav."  Manifestly,  if  we  look  only  at  the  surface  meaning 
of  words,  these  two  definitions  are  inconsistent,  or  at  least  over- 
lap each  other,  since  there  must  be  many  offices  which  could 
not  be  fairly  described  as  ''operated  only  during  the  daytime'* 
and  yet  are  not,  in  any  absolute  sense,  ''continuously  operated 
night  and  day."  For  example,  in  a  case  ai^ed  at  the  same 
time  with  this,  the  office  was  open  throughout  the  24  hours, 
except  from  1.30  a.  m.  to  6.30  a.  m.  To  say  that  such  an  office 
is  operated  only  in  the  daytime  is  to  do  violence  to  the  commonest 
uncferstanding. 

This  is  plainly  a  case  where  the  natural  significance  of  terms 
must  yield  to  the  necessity  for  giving  to  the  entire  proviso  such 
reasonable  meaning  as  will  promote  its  beneficial  purpose.  If  it 
seems  a  strained  and  unwarranted  construction  to  hold  that  an 
office  which  is  generally  closed  at  10.15  p.  m.,  and  never  later 
than  11,  and  kept  closed  till  6.30  a.  m.,  is  nevertheless  "continu- 
ously operated  night  and  day,"  is  it  not  equally  strained  and  un- 
warranted to  hold  that  an  office  which  is  kept  open  from  6.30  a.  m. 
to  10.15  p.  m.^  or  later,  is  nevertheless  "operated  only  during  the 
daytime."  Since  the  office  in  question  must  be  assigned  to  one 
class  or  the  other,  we  are  of  opinion  on  the  whole  that  it  will  be 
more  correctly  and  usefully  placed  in  the  night-and-day  class  than 
in  the  daytime  class.  If  this  conclusion  gives  greater  effect  to 
the  words  "operated  only  during  the  daytime"  than  to  the  words 
"continuously  operated  night  and  day,"  we  think  the  objects  of 
the  law  requke  that  preference  be  accorded  to  a  construction 
which  recognizes  the  legislative  intent  to  permit  13  hours  of  serv- 
ice in  offices  kept  open  only  such  number  of  hours  in  the  aggregate 
as  do  not  materially  or  substantially  exceed  the  length  of  an  ordi- 
nary day,  and  to  prohibit  more  than  9  hours  service  in  offices 
kept  open  such  number  of  hours  in  the  aggregate  as  necessarily 


SCOPE.  149 


include  a  material  or  substantial  portion  of  the  night. — Knapp, 
a  J.,  pp.  901-902. 

The  defendant  contends  that  "  continuoasly  "  means  without 
cessation,  and  that  the  offices,  etc.,  ''continuously  operated  ni^ht 
and  day"  can  only  include  places  operated  ^vithout  cessation 
through  the  night  and  day.  The  context  and  the  purpose  of  the 
statute  shows  that  this  is  not  the  sense  in  which  the  words  were 
used.  The  statute  was  intended  to  cover  all  telegraph  offices. 
[U.  S.  V.  Atchison,  T.  &  S.  F.  Ry.  Co.,  220  U.  S.,  37.]  If  the 
defendant's  construction  were  adopted,  it  would  cover  only  day 
offices  and  offices  operated  throughout  the  day  and  night,  leaving 
out  the  offices  operated  during  the  day  and  into  the  night.  There 
is  some  reason  for  attributing  the  meaning  of  habitually  or  regu- 
larly to  the  word  ''  continuously" ;  but  the  plain  construction  and 
that  which  will  give  the  statute  its  full  signification  is  to  take  the 
whole  phrase  "offices,  places,  and  stations  continuously  operated 
night  and  day"  to  mean  offices  whose  operation  is  continued 
from  the  day  into  the  night.  The  statute  assumes  that  all  offices 
will  be  operated  during  the  daytime,  and  for  those  operated  dur- 
ing the  daytime  only  it  makes  the  13-hour  requirement;  for  those 
which  are  operated  during  the  daytime  with  a  continuance  of 
operation  into  the  night  it  makes  the  9-hour  requirement. — 
Woods,  C.  J.  [concurring],  p.  902. 
But  see: 

TJ.  S.  V.  Grand  Rapids  (&  I.  Ry.  Co.  [unreported]. 
District  Court,  Western  District  of  Micliigan,  Dec.  31,  1912. 

Can  it  be  said  that  an  office  which  is  closed  for  seven  con- 
tinuous hours  from  9.30  o'clock  p.  m.,  to  4.30  o'clock  a.  m.,  or 
for  seven  and  one-half  continuous  hours  from  11  o'clock  p.  m.  to 
6.30  o'clock  a.  m.,  is  one  '*  continuously  operated  night  and 
day"  ?  To  so  hold  would  do  violence  to  the  ordinary  and  plain 
meaning  of  the  language  used.  The  period  during  which  each 
of  these  offices  was  closed  constitutes  the  major  part,  and  during 
the  summer  season  almost  the  whole  of  the  night  time  or  hours 
of  darkness.  It  is  also  to  be  noted  that  the  time  during  which 
these  offices  were  closed  is  the  part  of  the  day  usually  devoted 
to  sleep  and  rest.  The  service  required  of  these  operators  did 
not  prevent  their  obtaining  sufficient  rest  and  recreation  and 
did  not  endanger  in  any  degi-ee  the  persons  or  property  of  em- 
ployees or  patrons  of  the  railroad  and,  therefore,  did  not  con- 
travene in  any  way  the  remedial  purpose  of  the  Act  of  Con- 
gress,— Sessions,  D.  J. 

(b).  Trifling  interruptions  do  not  break  the  continuity  of  operation  of 
an  office  otherwise  continuously  operated. 
U.  S.  V.  Atchison,  T.  cfc  S.  F.  Ry.  Co.,  220  U.  S.,  37. 
Supreme  Court,  March  13,  1911. 

The  antithesis  is  between  places  continously  operated  night 
and  day  and  places  operated  only  during  the  daytime.  We 
think  that  the  Government  is  right  in  saying  that  the  proviso  is 
meant  to  deal  with  aU  offices,  and  if  so,  we  should  go  farther  than 
otherwise  we  might  in  holding  offices  not  operated  only  during 
the  daytime  as  falling  under  the  other  head.     A  trifling  inter- 


150  HOURS  OF  SEEVICE  ACT. 


rution  would  not  be  considered,  and  it  is  possible  that  even  three 
hours  by  night  and  three  hours  by  day  would  not  exclude  the 
office  from  all  operation  of  the  law,  and  to  that  extent  defeat 
what  we  believe  was  its  intent. — Holmes,  Justice,  pp.  43-44. 

U.  S.  V.  St  Louis  S.  W.  By.  Co.  of  Texas,  189  Fed.,  954. 

District  Court,  Western  District  of  Texas,  August  16,  1911. 
In  the  present  case  the  office  was  closed  each  day  of  24 
hours  four  times  for  the  period  of  1  hour  only.  The  court  is 
clearly  of  the  opinion  that  the  office  was,  within  the  contempla- 
tion of  law,  continuously  operated  night  and  day.  If  the  de- 
fendant may  interrupt  the  continuity  of  the  working  hours  by 
closing  the  office  for  an  hour  and  thus  evade  the  statute,  why 
may  it  not  do  so  by  closing  the  doors  for  a  period  of  30  or  even 
15  minutes  ?     But  it  can  do  so  in  neither  case. 

It  is  not  within  the  power  of  a  carrier  by  resorting  to  shifts 
and  evasions  of  any  kind  or  character  to  nullify  a  statute  obvi- 
ously intended,  as  was  the  present  Act,  to  promote  the  safety  of 
employees  and  of  the  traveling  public. —  Maxey,  D.  J.,  p.  964. 

V.  S.  V.  Missouri,  K.  &  T.  Ry.  Co.,  208  Fed.,  957. 
District  Court,  District  of  Kansas,  January  13,  1913. 

On  the  contrary,  it  is  contended  by  defendant,  as  the  10 
hours  of  service  performed  by  its  operators  were  not  continuous, 
but  were  broken  by  the  intervention  of  1  hour,  and  as  the  office 
was  not  open  for  the  purpose  of  telegraphic  communications 
regarding  the  movement  of  trains  from  6  a.  m.  until  8  a.  m.  each 
day,  it  was  not  a  night  and  day  office  within  the  meaning  of  the 
section  of  the  Act  quoted.  That  is  to  say,  it  is  the  contention 
of  defendant  neither  the  hours  of  service  of  its  employees  nor  the 
operation  of  its  Coffeyville  office  were  so  continuous  as  required 
by  the  Act  to  make  it  both  a  night  and  day  office. 

From  the  facts  as  stipulated  I  am  of  the  opinion,  on  both  au- 
thority and  the  very  reason  of  the  matter,  defendant  has  violated 
the  Act  as  charged  in  counts  1  to  6,  inclusive,  of  the  amended 
petition. — Pollock,  D.  J.,  p.  958. 

U.  S.  V.  Atchison,  T.  cfc  S.  F.  Ry.  Co.,  177  Fed.,  115;  U.  S.  v. 
Atlantic  Coast  Line  R.  Co.,  211  Fed.,  897.  See  also  U.  S.  v. 
Chicago,  M.  dc  P.  S.  Ry.  Co.,  197  Fed.,  624. 

"Period,"  as  used  in  the  Act,  defined: 
Atchison,  T.  &  S.  F.  Ry.  Co.  v.  U.  S.,  177  Fed.,  114. 

Circuit  Court  of  Appeals,  7th  Circuit,  January  4,  1910. 

The  position  of  the  Government  is  therefore  reduced  to  its 
contention  respecting  the  word  ''period,"  that  ''period"  is  "a 
term,"  "a  cycle,"  something  "continuous"  between  a  definite 
beginning  and  a  de&iite  end — whereby  invoking  the  canon  of 
strict  construction  in  criminal  statutes,  the  period  was  a  period 
of  12  hours,  notwithstanding  the  intermission. 

We  can  not  concur  in  this  view.  The  statute  was  passed 
with  custom  as  a  background.  According  to  custom,  9  hours 
work  unquestionably  means  9  hours  actual  employment, 
whether  broken  by  an  intermission  for  lunch  or  on  account  of 
some  other  occasion.     According  to  custom,  too,  especially  in 


SCOPE.  151 


railroading  in  the  new  western  States,  the  actual  service  of  em- 
ployees is  divided,  necessarily  divided,  throughout  the  day  to 
correspond  with  the  arrival  and  departure  of  trains.  Certainly 
Congress  did  not  intend  to  override  these  existing  customs;  mak- 
ing it  necessary  either  that  the  railroad  company  should  not  ^ive 
intermissions,  or  that  the  employees  should  be  paid  notwith- 
standing the  intermissions;  and  making  it  necessary  at  many 
stations  (presumably  well  known  to  Congress)  that  the  railroad 
should  employ  a  different  telegraph  operator  for  every  train  that 
came  and  went  (trains  on  western  roads  being  often  more  than 
9  hours  apart),  irrespective  of  the  fact  that  the  actual  service 
for  each  train  was  a  very  short  period  of  time.  The  contention 
of  the  Government  gives  to  this  word  ''period,''  all  things  consid- 
ered, a  highly  strained  meaning.  Disregarding  a  meaning  so 
strained,  and  reading  the  word  in  connection  with  the  context, 
and  in  the  light  of  ordinary  custom,  we  are  clear  that  the  acts 
proven  do  not  constitute  an  offense  within  the  meaning  of  the 
law. — Grosscuj),  C.  J.,  p.  118.  [Affirmed  by  the  Supreme  Court 
in  U.  S.  V.  Atchison,  T.  cfe  S.  F.  By.  Co.,  220  U.  S.,  37.] 

Per  Contra: 

U.  S.  V.  Atchison,  T.  &  S.  F.  By.  Co.,  177  Fed.,  115. 

District  Court.  Northern  District  of  Illinois,  April  21,  1909. 
"Period"  is  the  antithesis  of  "age^regate."  It  implies  continuity,  unbroken- 
ness,  uninterruptedness,  as  distinj:;ui3hed  from  "ae^gregate,"  which  signifies  the 
sum  or  total  or  gross  amount  of  separate  and  distinct  particles.  Thus  reference 
is  made  to  the  "Revolutionary  period,"  the  "Reconstruction  period,"  the 
"twenty-four-hour  period"  (as  used  in  the  Act  itself),  each  of  which  expressions 
has  a  definite  and  well-understood  meaning  which  is  diametrically  opposed  to 
and  which  excludes  the  idea  that  is  the  basis  of  the  defendant's  claim.  More- 
over, immediately  preceding  the  provision  under  consideration  is  the  language 
used  by  Congress  in  dealing  with  the  same  subject  as  related  to  railway  employees 
in  general,  which,  as  before  observed,  distinctly  provides  a  limitation  on' the 
hours  of  service  in  the  aggregate,  as  distinguished  from  continuous  or  unbroken 
service.  Landis,  D.  ./.,  p.  116.  [Reversed  by  the  Circuit  Court  of  Appeals  for 
the  7th  Circuit  in  Atchison,  T.  &  S.  F.  Ry.  Co.  v.  U.  S.,  177  Fed.,  114,  ante.] 

(a).  An  operator  employed  for  6  hours,  and  then,  after  an  interval  of  3, 
for  an  additional  period  of  3  hours,  is  not  on  duty  for  a  longer 
period  than  9  hours  in  a  24-hour  period. 
U.  S.  V.  Atchison,  T.  <&  S.  F.  Ry.  Co.,  220  U.  S.,  37. 
Supreme  Court,  March  13,  1911. 

But  if  we  concede  the  Government's  first  proposition  it  is 
impossible  to  extract  the  requirement  of  15  hours'  continuous 
leisure  from  the  words  of  the  statute  by  grammatical  construc- 
tion alone.  The  proviso  does  not  say  9  '' consecutive"  hours, 
as  was  said  in  the  earUer  part  of  the  section,  and  if  it  had  said  so, 
or  even  ^'for  a  longer  period  than  a  period  of  9  consecutive 
hours,"  still  the  defendant's  conduct  would  not  have  contra- 
vened the  literal  meaning  of  the  words.  A  man  employed  for 
6  hours  and  then,  after  an  interval,  for  3,  in  the  same  24,  is  not 
employed  for  a  longer  period  than  9  consecutive  hours.  Indeed, 
the  word  consecutive  was  struck  out,  when  the  bill  was  under 
discussion,  on  the  suggestion  that  otherwise  a  man  might  be 
worked  for  a  second  9  hours  after  an  interval  of  half  an  hour. 


152  HOURS  OF  SEEVICE  ACT. 


In  order  to  bring  about  the  effect  contended  for  it  would  have 
been  necessary  to  add,  as  the  section  does  add  in  the  earlier  part, 
a  provision  for  the  required  number  of  consecutive  hours  off 
duty.  The  presence  of  such  a  provision  in  the  one  part  and  its 
absence  in  the  other  is  an  argument  against  reading  it  as  imphed. 
The  Government  suggests  that  if  it  is  not  imphed  a  man  might  be 
set  to  work  for  2  hours  on  and  2  houi-s  off  alternately.  This 
hardly  is  a  practical  suggestion.  We  see  no  reason  to  suppose 
that  Congress  meant  more  than  it  said.  On  the  contrary,  the 
reason  for  striking  out  the  word  consecutive  in  the  proviso  given, 
as  we  have  mentioned,  when  the  bill  was  under  discussion,  and 
the  alternative  reference  in  section  2  to  ''  16  consecutive  hours" 
and  ''  16  hours  in  the  aggregate,  ''show  that  the  obvious 
possibility  of  two  periods  of  service  in  the  same  24  hours  was 
before  the  mind  oi  Congress,  and  that  there  was  no  oversight 
in  the  choice  of  words. — Holmes,  Justice,  pp.  44-45.  [Affirming 
the  judgment  of  the  Circuit  Court  of  Appeals  for  the  7th  Circuit, 
in  Atchison,  T.  cfc  S.  F.  By.  Co.  v.  U.  S.,  177  Fed.,  114.] 
See  also  Wasliington,  P.  dh  0.  By.  Co.  v.  Magruder,  198  Fed., 
218,  229. 

-(b).  Bntif  such  an  employee  remains  on  duty  in  a  continuously  operated 
ofSce  for  more  than  9  hours  in  a  24-hour  period,  it  is  immaterial 
that  such  service  may  not  be  continuous. 
V.  S.  y.  St.  Louis  S.  W.  By.  Co.  of  Texas,  189  Fed.,  954. 

District  Court,  Western  District  of  Texas,  August  16,  1911. 

Finally,  it  is  insisted  that  the  defendant  has  not  violated  the 
provisions  of  the  Act,  for  the  reason  that  the  operators  were  not 
engaged  in  work  for  a  longer  continuous  period  than  9  hours  in  a 
24-hour  period.  And  it  is  said  by  counsel  in  their  brief:  ''The 
way  these  operators  were  handled  they  were  on  duty  for  two 
distinct  periods  in  a  24-hour  period.  Those  two  periods  added 
together  made  10  hours,  but  neither  one  of  them  was  longer  than 
9  hours.  We  therefore  confidently  submit  to  the  court  that 
neither  of  the  allegations  of  facts  shows  that  the  statute  was 
violated  in  letter  or  in  spirit." 

The  words  of  the  law  are  that  no  operator  or  train  dispatcher, 
etc.,  "shall  be  required  or  permitted  to  be  or  remain  on  duty  for  a 
longer  period  than  9  hours  in  any  24-hour  period  in  all  towers, 
offices,  places,  and  stations  continuously  operated  night  and 
day,"  et€. 

It  has  been  shown  (1)  that  the  East  Waco  office  was  one  con- 
tinuously operated  night  and  day,  and  (2)  that  the  two  operators 
remained  on  duty  10  hours  for  each  day  mentioned  in  the  peti- 
tion. Since  then  the  office  was  a  continuously  operated  night- 
and-day  office,  and  Scarff  and  Afford  were  permitted  to  remain 
on  duty  for  a  longer  time  than  9  hours  in  a  24-hour  period,  it 
follows,  if  the  language  of  the  Act  be  given  its  ordinary  significa- 
tion, that  the  defendant  infringed  the  law  in  thus  permitting  its 
operators  to  work  for  a  longer  time  than  that  prescribed  by  the 
statute. —  Maxey,  D.  J.,  p.  964. 


SCOPE.  153 


TJ.  S.  V.  Missouri,  Z.  cfc  T.  Ry.  Co.,  208  Fed.,  957. 

District  Court,  District  of  Kansas,  January  13,  1913. 

It  is  thus  seen  the  day  operator  employed  by  defendant  at 
this  station  on  May  30  to  June  2,  both  inclusive,  was  continu- 
ously on  duty  from  8  a.  m.  to  7p.  m.,  except  1  hour  from  12 
noon  until  1  p.  m.,  or  10  hours  of  service  out  of  11  consecutive 
hours.  And  Night  Operator  Webster,  during  the  same  period, 
extending  to  the  morning  of  June  1,  a  similar  number  of  con- 
secutive hours,  except  1  hour  from  12  midnight  to  1  a.  m.,10 
hours  of  service  out  of  11  consecutive  hours.     *     *     * 

From  the  facts  as  stipulated,  I  am  of  the  opinion,  on  both 
authority  and  the  very  reason  of  the  matter,  defendant  has 
violated  the  Act  as  charged  in  counts  1  to  6,  inclusive,  of  the 
amended  petition. — Pollock,  D.  J.,  p.  958. 

10.  Towermen  and  switch-tenders  who  use  the  telephone  for  the  com- 
munication of  information  or  instructions  relative  to  the  move- 
ment of  trains  are  subject  to  the  proviso  in  section  2  of  the  Act. 
Scope  of  the  Act— Operators. — The  proviso  in 
section  2  covers  every  en  ployee  who,  by  the  use  of  the 
telegraph  or  telephone,  handles  orders  pertaining  to  or 
affecting  train  moven  ents.     In  order  to  preserve  the 
obvious  intent  of  the  law  this  provision  must  be  con- 
strued to  include  all  en  ployees  who,  by  the  use  of  an 
electrical  current,  handle  train  orders  or  signals  which 
control  movements  of  trains. — Adm.  Ruling  No,  287 -d, 
U.  S.  V.  Houston  B.  <&  T.  Ry.  Co.,  205  Fed.,  344. 

Circuit  Court  of  Appeals,  5th  Circuit,  May  5,  1913. 

The  following  facts  are  undisputed.  Defendant  is  a  com- 
mon carrier  engaged  in  interstate  comn  erce  and  operates  two 
signal  towers  in  its  yard  at  Houston.  Tower  No.  1  is  about  400 
yards  from  the  rr  ain  station  and  the  train  dispatcher's  oJjice  and 
tower  No.  2  is  about  three-quarters  of  a  mile  further  out  around 
a  curve.  The  towers  are  not  visible  from  each  other  and  are 
connected  by  telephone,  which,  however,  has  no  connection 
with  the  train  dispatcher's  office  or  any  other  points.  Each 
tower  controls  about  25  switches  and  a  double- track  main  line 
connects  with  them.  The  towers  are  operated  continuously  day 
and  night.  Two  operators  are  en -ployed  in  each  tower,  each 
working  12  hours  continuously,  and  the  towermen  communicate 
with  each  other  over  the  telephone.     *     *     * 

It  is  contended  on  behalf  of  the  railroad  company  that  the 
word  ^'orders"  in  the  statute  must  be  construed  to  n]ean  what 
the  railroads  technically  call  ''train  orders";  that  is,  such  orders 
as  en  anate  from  the  train  dispatcher's  office,  and  are  reduced  to 
writing  and  handed  to  the  conductor  and  engineer  of  a  train. 
We  can  not  agree  with  this  contention.  To  do  so  would  be  to 
pervert  the  plain  meaning  of  the  statute.  An  order  affecting 
train  movements  may  be  given  by  a  wave  of  the  hand  or  the  flash 
of  a  lantern  and  its  disobedience  nught  cause  as  dire  consequences 
as  the  failure  to  obey  a  written  message.  Necessarily  an  order 
affecting  train  movements  can  be  given  by  any  subordinate 
having  to  do  with  trains  and  switches  such  as  a  towerman. 


154  HOURS  OF  SERVICE  ACT. 


The  railroad  further  contends,  however,  that  the  telephone 
between  these  towers  is  not  used  to  transmit  ''orders"  in  an^y 
sense  of  the  word.  Regarding  this,  it  is  evident,  from  the  testi- 
mony of  the  towerman  quoted  above,  that  they  use  the  telephone 
to  repeat  signals  from  the  trainmen  which  indicate  the  routing 
of  the  train  as  originally  made  by  the  train  master.  That  they 
give  information  over  it  that  trains  have  started,  on  receipt  of 
which  information  the  other  towerman  must  throw  switches, 
line  up  tracks,  and  hold  other  trains,  as  a  matter  of  duty  and 
without  discretion  on  his  part,  and  that  they  run  trains  in  both 
directions  over  a  single  track  and  instruct  the  other  towermen 
by  the  telephone  as  to  holding  traffic.  It  is  therefore  evident 
that  these  towermen  use  the  telephone  to  dispatch,  report,  trans- 
mit, receive,  and  deliver  orders  appertaining  to,  or  aJffecting,  train 
movements.  To  say  that  these  towermen  only  used  the  tele- 
phone for  the  giving  of  information,  not  covered  by  the  statute, 
would  be  the  merest  sophistry.  Indeed  it  is  difficult  to  conceive 
how  anything  could  be  a  more  imperative  order  affecting  train 
movements  than  for  one  towerman  to  notify  another  that  he 
had  started  a  train,  at  the  same  time  telUng  him  to  hold  all 
traffic  in  the  opposite  direction  over  the  same  track. —  Foster , 
D.  J.,  pp.  345,  347-348. 
R  S.  V.  Cleveland,  C.  C.  db  St  L.  By.  Co.  [unreported]. 

District  Court,  Southern  District  of  Ohio,  December  12,  1911. 

These  two  men,  Davidson  and  Betts,  were  employed  as 
switchmen  at  the  switches  you  have  heard  described,  both  orally 
and  by  illustration  on  the  blackboard.  There  is  no  dispute 
that  they  received  communications  relative  to  the  movement  of 
trains  and  received  them  by  telephone.  Their  end  of  the  tele- 
phone was  at  what  has  been  called  the  " shanty ''  at  or  near 
the  switches.  It  was  there  that  the  communications  were  re- 
ceived, and  so  it  may  fairly  be  said  that  that  was  a  place  where 
they  receive  communications,  which  were  in  effect  orders. 
That  is  using  the  word  "order"  in  its  ordinary  plain  meaning, 
as  we  would  all  understand  from  the  use  of  the  word  what  its 
meaning  is.  And  so,  under  the  testimony  here  it  would  seem  as 
if,  when  its  ordinary,  plain  meaning  is  given  to  the  word  "order" 
or  "orders,"  that  the  defendant  had  failed  to  comply  with  the 
law. 

But  if  I  am  wrong  about  that  there  are  other  considera- 
tions which  make  me  think  it  right  to  sustain  the  motion  of  the 
Government;  one  is  that  it  is  shown,  and  not  disputed,  as  I 
understand  the  testimony,  that  it  is  possible,  that  is  to  say  it 
might  happen,  that  if  one  of  these  switchmen  on  duty  should 
forget  one  of  these  communications,  and  by  reason  thereof  a 
tram  should  pass  through  the  switch  instead  of  stopping,  what- 
ever the  cause  of  its  passing  through  might  be — whether  neglect 
of  duty  on  the  part  of  the  engineer  or  not  would  not  seem  to  be 
material — an  accident  might  result.  So  that  if  you  consider 
the  purpose  of  the  statute;  which  was  to  secure,  so  far  as  prac- 
ticable, alertness  and  activity  of  mind  and  wakefulness  on  the 
part  of  employees  of  the  railroad  engaged  in  such  service,  it 
would  seem  that  if  there  was  any  doubt  about  the  language  of 


SCOPE.  155 


the  statute,  yet,  if  in  the  operation  of  trains  at  this  point  an  acci- 
dent could  happen  by  reason  of  the  exhausted  or  tired  condition 
of  the  switchman  in  charge  in  mind  or  body,  or  both,  it  was  just 
such  a  case  as  the  Congress  had  in  mind.  And  further  than 
that,  and  as  another  reason  for  the  conchision  I  have  thought 
right,  it  was  testified  by  Mr.  Bailey  this  morning  that  the  func- 
tion performed  by  these  switchmen  was  the  same  as  if  they  were 
stationed  in  a  tower  there  or  near  by;  and  if  I  did  not  read  all  of 
that  statute  I  should  have  done  so,  because  it  provides  that  it 
shall  be  ap])licable  to  persons  in  towers — operating  in  towers — 
if  I  am  not  mistaken. — HolUster,  D.  J. 
U.  8.  V.  Missouri  Pacific  By.  Go.  [unreported]. 

District  Court,  Western  District  of  Missouri,  May  8,  1913. 

[The  employees  in  question  were  switch  tenders  or  operators 
located  at  a  little  house  or  shanty  about  six  blocks  north  of  the 
Union  Station  in  Kansas  City,  IVIo.  In  the  shanty  were  three 
telephones  connecting  with  other  towers  and  offices  of  the 
Missouri  Pacific  Railway  Co.  These  switch  tenders  reported 
by  telephone  the  movement  of  trains  in  either  direction  to  one 
01  the  towers  toward  which  the  train  was  going.  They  operated 
8  or  10  ground  switches  by  hand,  as  became  necessary  from  time 
to  time,  to  route  these  trains  according  to  the  information  or 
instruction  received  over  the  telephone.  When  a  train  was 
about  to  enter  the  Union  Station,  they  announced  that  fact  by 
telephone  to  the  Burlington  tower,  and  the  operator  in  the 
Burlington  tower  telephoned  in  reply  ''Hold  them''  or  ''All 
right,"  as  the  case  might  be.  The  same  general  rule  appfied  to 
movements  in  the  opposite  direction.  In  case  of  a  train  coming 
from  the  Union  Depot  they  got  four  rings  from  the  Burlington 
tower,  from  which  they  understood  that  a  train  was  coming. 

They  did  not  turn  a  switch  until  they  got  a  clearance  from 
the  Burlington  tower.  On  the  switch  stands  were  signals 
normallv  set  at  danger  and  changed  to  signify  safety  by  the 
manipulation  of  the  switch  lever  by  these  switch  operators. 

These  switch  operators  also  give  trains  signals  by  hand  or 
by  lantern,  based  on  information  received  by  them  over  the 
telephone. — Statement  of  facts.] 

I  have  not  left  out  of  mind  the  suggestion  by  counsel — 
and  it  is  important — that  the  words  "other  employees"  and  the 
language  respecting  the  place  of  employment  should  be  read  in 
connection  with  the  preceding  terms  and  designations  of  employ- 
ees and,  in  view  of  the  fact  that  this  proviso  excepts,  out  of  the 
general  category  of  employees,  a  specific  character  of  employees, 
that  in  such  cases  the  Act  should  be  read  as  a  whole,  so  as  to  carry 
out  the  specific  purpose  that  was  in  the  mind  of  Congress  in  enact- 
ing this  legislation.  But  I  think  that  the  entire  subject  matter 
dealt  with  should  be  the  controlhng  matter  in  determining  to 
what  the  term  ejusdem  generis  shaU  apply  and  be  understood. 
And,  as  the  Act  says,  the  reference  is  to  any  operator,  train  dis- 
patcher, or  "other  employee"  who,  by  the  use  of  the  telegraph 
or  telephone,  dispatches,  reports,  transmits,  receives,  or  delivers 
orders  pertaining  to  or  affecting  train  movements.  Now,  the 
use   of   the   words   "other   employee"   means   that  somebody 


156  HOURS  OF  SERVICE  ACT. 


besides  an  operator  or  a  train  dispatcher  was  in  the  contempla- 
tion of  Congress  and  that  some  use  of  the  telegraph  or  telephone 
other  than  that  of  a  telegraph  operator  or  train  dispatcher  was 
contemplated  and  meant. 

Furthermore,  the  difi'ercnt  words  used  cover  every  sort  of  a 
connection  with  the  transmission  of  such  orders,  not  limited  to 
the  mere  issuance  of  them,  or  mere  handling  of  them,  as  one  from 
whom  they  originally  emanated,  or  his  agent.  But  it  would 
seem  to  be  anybody  who  dispatches,  reports,  transmits,  receives, 
or  dehvers  such  orders,  or  those  in  any  way  having  anything  to 
do  with  the  putting  of  such  orders  into  commission  and  hnal 
execution.  And  this  is  made  to  my  mind  more  certain  from  the 
fact  that  the  ''places"  where  these  employees  work  as  disclosed 
clearly  contemplate  that  such  a  person  who  is  within  the  purview 
of  this  Act  is  not  limited  to  the  regular  places  where  operators  and 
train  dispatchers  and  those  of  the  specific  character  insisted  upon 
by  defendant  work;  but  the  Act  says,  towers  and  offices  and 
stations  and  places.  So  that  very  clearly  any  place  where  any 
man  works,  and  has  anything  to  do  with  the  use  of  a  telephone 
in  the  dispatching,  reporting,  transmitting,  receiving,  or  delivery 
in  any  sense  of  orders  is  meant  by  the  Act,     *     *     * 

Now,  reference  has  been  made  to  debates  in  Congress.  When 
this  Act  was  in  conference  it  is  disclosed  to  me  by  quotations  from 
the  Congressional  Record  that  Messrs.  Hepburn  and  Sherman, 
managers  on  the  part  of  the  House  of  Representatives,  made  a 
report  [Cong.  Rec,  pp.  4619-4620-4621]  in  which  it  was  said  that 
the  amendment  prepared  in  conference  also  brought  within  the 
provisions  of  the  law  all  towermen  and  interlocking  switchmen 
who  did  not  operate  either  through  a  telephone  or  telegraph,  and 
yet  whose  duties  are  important.  That  was  stricken  out,  but  the 
very  fact  that  it  was  presented  shows  it  was  contemplated  that 
the  Act  did  cover  all  such  towermen  and  interlocking  switchmen, 
and  these  certainly  belong  to  this  latter  class,  who  did  operate  in 
the  performance  of  their  duties  either  through  telephone  or  tele- 
graph, and  so  the  law  was  left  in  form  to  include  them.  This  is 
not  at  all  conclusive  upon  the  court,  but  it  is  a  further  indication 
of  what  the  spirit  and  purpose  of  the  law  was. —  Van  Vallcenr 
hurghy  D.  J.  [Judgment  reversed  by  the  Circuit  Court  of  Appeals 
for  the  8th  Circuit,  in  Missouri  Pacific  Ry.  Co.  v.  U.  S.,211  Fed., 
893,  cited  on  the  following  page. 
But  see : 
U.  S.  V.  Chicago,  R.  I.  &  P.  Ry.  Co.  [unreported]. 

District  Court,  Western  District  of  Missouri,  March  5,  1914. 

I  am  constrained  to  hold  that  the  mechanical  device  for 
dispatching  trains  in  use  by  the  defendant  company  does  not 
constitute  dispatching  by  means  of  the  telegraph  or  telephone 
within  the  meaning  of  the  hours  of  service  law.  It  is  true  that 
signals  actuated  by  electricity  are  employed,  but  in  this  Act 
I  believe  the  word  ^ 'telegraph^'  was  employed  in  its  commonly 
accepted  meaning  and  that  it  would  constitute  legislation  to 
extend  that  meaning  to  embrace  contrivances  clearly  not  con- 
templated by  the  Congress.    It  must  be  conceded  that  it  is  within 


SCOPE.  157 


the  bounds  of  possibility,  and  even  of  probability,  that  means 
may  be  deviseci  whereby  the  dangers  sought  to  be  averted  may 
be  entirely  removed  and  to  which  the  reasons  underlying  the 
law  may  no  longer  have  application.  It  is  undoubtedly  true 
that  safety  in  the  dispatching  of  trains  was  the  object  primarily 
sought  to  be  attained;  but  if  it  be  deemed  wise  and  necessary 
to  make  the  9-hour  limit  apply  to  all  acts,  forms,  or  methods 
connected  with  such  dispatching,  and  the  communication  of 
orders  incidental  thereto,  it  is  lor  Congress  so  to  declare  in 
sufficiently  explicit  terms.  That  it  has  expressly  refrained  from 
doing  so  IS  apparent.  An  inspection  of  the  latest  utterance  of 
the  court  of  appeals  for  this  circuit  [Missouri  Pacific  Ry.  Co.  v. 
U.  S.,  211  Feci.,  893]  convinces  that  such  is  the  view  entertained 
by  that  court  upon  a  matter  of  interpretation  of  this  nature. — ■ 
Van  Valkenburgh,  D.  J. 

See  also: 

Employees  in  train  service. — A  trainman  re- 
quired by  the  rules  of  the  carrier,  in  conjunction  with 
his  duties  as  trainman,  to  send,  receive,  or  deliver  orders 
affecting  the  movement  of  trains  comes  within  the  pro- 
viso of  section  2  of  the  Hours  of  Service  Act;  and  there- 
fore a  carrier  may  not  require  a  trainman  who  has  been 
on  duty  longer  than  the  limit  of  time  fixed  for  a  tele- 
graph or  telephone  operator  to  send,  receive,  or  deliver 
orders  affecting  the  movement  of  trains  as  a  part  of 
the  duties  regularly  assigned  to  him. 

But  upon  inquiry  whether  the  practice  of  requiring 
conductors  of  trains  delayed  at  stations  where  there  is 
no  regularly  assigned  telegraph  or  telephone  operator 
on  duty,  and  conductors  of  trains  about  to  be  overtaken 
b^  superior  trains,  to  telephone  or  telegraph  the  train 
dispatcher  for  instructions  is  in  accord  with  the  Act  and 
with  the  Commission's  order  of  interpretation  of  June 
25,  1908  [Adm.  Ruling  No.  88]:  Held,  That  a  trainman 
who  has  been  on  duty  for  more  than  9  hours  or  for  more 
than  13  hours  is  not  prohibited  from  occasionally  using 
the  telegraph  or  telephone  to  meet  an  emergencv- — 
Adm.  Ruling  No.  S42. 

Per  contra : 

Missouri  Pacific  Ry.  Co.  v.  U.  S.,  211  Fed.,  893. 

Circuit  Court  of  Appeals,  8th  Circuit,  February  16,  1914. 
Wlien  all  is  said  about  the  duties  of  these  men,  it  comes  to  this:  Their  primary 
duty  was  to  throw  these  switches,  whenever  necessary,  and  the  telephones  were 
used  to  inform  them  from  time  to  time  what  was  wanted  in  regard  to  the  switching 
and  in  reporting  to  those  who  intended  to  use  the  switches,  the  preparation  that 
had  been  made  for  such  use.  It  did  not  differ  except  in  complexity  of  operation 
from  the  service  performed  by  a  brakeman  who  runs  ahead  of  his  train,  turns  a 
switch,  and  swings  his  hand  by  day,  or  lantern  by  night,  to  signal  the  engineer. 
If  one  is  within  the  proviso  of  section  2,  so  is  the  other,  unless  it  be  held  that  the 
mere  use  of  the  telephone  brings  one  switchman  within  the  9-hour  provision  and 
leaves  another  who  does  not  use  it  under  the  16-hour  clause,  although  the  service 
performed  is  the  same.  But  we  apprehend  that  there  will  be  no  contention  that 
Congress  fixed  the  period  of  9  hours  for  certain  employees  because  of  the  use  of 
the  telephone.  The  difference  in  the  hours  of  labor  fixed  by  section  2  was  based 
upon  the  character  of  the  service  rendered  by  the  employee,  not  upon  the  use  of 
the  telephone.     R.  Connell  and  J.  W.  King,  beyond  question,  were  not  operators 


158  HOURS  OF  SERVICE  ACT. 


or  dispatchers.  They  were  employees,  but  were  they  employees  within  the 
meaning  of  section  2,  who  by  the  use  of  the  telegraph  or  telephone  dispatched, 
reported,  transmitted,  received,  or  delivered  orders  pertaining  to,  or  affecting 
train  movements?  *  *  *  We  think  that  under  a  well-established  rule  of  con- 
struction the  words  "or  other  employee,"  found  in  the  proviso,  must  be  construed 
to  mean  an  employee  engaged  in  the  same  character  of  service  as  a  train  dis- 
patcher or  operator,  who  by  the  use  of  the  telegraph  or  telephone  performs  the  work 
described  in  the  proviso.  In  other  words,  Congress  intended  the  9-hour  provision 
to  apply  to  employees  whose  primary  dut}-  was  to  dispatch,  report,  transmit, 
receive,  or  deliver  orders  pertaining  to  or  affecting  tram  movements.  We  do 
not  mean  by  this  that  the  word  "orders"  should  be  limited  to  technical  train 
orders  described  in  what  are  known  as  standard  rules  for  the  movement  of  trains. 
Confess  was  dealing  with  a  class  of  employees  engaged  primarily  in  a  particular 
service  and  the  mere  form  of  the  order,  pertaining  to  or  affecting  train  movement, 
is  immaterial,  if  it  is  dispatched,  reported,  transmitted,  received,  or  delivered 
by  the  use  of  the  telegraph  or  telephone.  Where  general  words  follow  an  enu- 
meration of  particular  classes  of  persons  or  tilings  the  '  will  be  construed  as  applica- 
ble only  to  persons  or  things  of  the  same  general  nature  or  class  as  those  enumer- 
ated. The  particular  words  are  presumed  to  describe  certain  species  and  the 
general  words  to  be  used  for  the  purpose  of  including  other  species  of  tlie  same 
genus.  The  rule  is  based  on  the  obvious  reason  that,  if  the  legislature  had  intended 
the  general  words  to  be  used  in  their  unrestricted  sense,  they  would  have  made 
no  mention  of  the  particular  classes.  The  words  "other"  or  "am^  other,"  follow- 
ing an  enumeration  of  particular  classes,  are  therefore  to  be  read  as  "other  such 
like,"  and  to  include  ordv  others  of  like  kind  or  character.  [First  Nat.  Bank  of 
Anamoose  v.  U.  S.,  206  Fed.,  374;   U.  S.  v.  Bevans,  3  Wheat.,  336.]    *    *    * 

As  the  word  "employee"  in  the  proviso  of  section  2  includes  "operator" 
and  "train  dispatcher,"  for  the  latter  are  both  employees,  the  conclusion  here  is 
irresistible  that  Congress  intended  bv  the  use  of  the  words  "other  employee"  to 
mean  an  employee  engaged  primarily  in  the  same  class  of  service  as  would  be 
performed  by  an  operator  or  train  dispatcher.  If  this  be  the  right  construction 
to  place  upon  the  proviso,  then  II.  Connell  and  J.  W.  King  were  not  in  any  sense 
employees,  whose  primar;/  duty  was  to  dispatch,  report,  transmit,  receive,  or 
deliver  by  the  use  of  the  telegraph  or  telephone  orders  pertaining  to  or  affectina 
train  movements  witliin  the  meaning  of  the  proviso.  Wliile,  as  has  been  saia 
before,  we  must  give  the  law  such  a  construction  as  will  promote  the  purpose  of 
the  law,  in  our  zeal  to  do  so,  however,  we  must  not  attempt  to  legislate  ourselves. 
We  are  cited  to  the  case  of  U.  S.  v.  Houston  B.  &  T.  Ry.  Co.,  205  Fed.,  344.  In 
regard  to  this  case,  it  is  sufficient  to  say  that  the  facts  which  appear  in  the  report 
of  that  case  differ  from  the  facts  in  the  present  record. — Carland,  C.  J.,  pp.  895, 
896,  897. 

11.  The  service  of  an  operator  at  a  local  station  is  as  clearly  within 
the  purpose  of  the  Act  as  is  that  of  a  similar  employee  in  a  train- 
dispatcher's  office. 
U.  S.  V.  Atlantic  Coast  Line  R.  Co.,  211  Fed.,  897. 

Circuit  Court  of  Appeals,  4th  Circuit,  February  3,  1914. 

In  the  second  place,  it  is  not  to  be  assumed  that  the  tele- 
grapher in  a  train  dispatcher's  office  or  other  similar  office  per- 
forms more  wearisome  labor  or  becomes  sooner  fatigued  than 
the  operator  at  an  ordinary  local  station.  The  latter,  it  is  true, 
may  average  only  a  small  number  of  train  orders  in  the  course 
of  a  day,  but  nevertheless  he  ma}^  have,  and  usually  does  have, 
other  duties  which  are  varied  and  often  onerous.  Even  if  he  is 
not  called  upon  to  act  as  station  agent  and  does  little  but  use  the 
telegraph  or  telephone,  the  orders  and  messages  of  the  company 
not  relating  to  trains  and  the  commercial  business  of  the  com- 
munity may  involve  exertion  and  responsibility  quite  as 
fatiguing  as  the  work  of  a  telegrapher  engaged  mainly  in  the 
transmission  of  train  orders.  In  other  words,  and  for  the  reasons 
here  suggested,  it  seems  to  us  that  operators  at  local  and  sub- 
ordinate stations  are  scarcely  less  liable  than  operaU^rs  at  main 


SCOPE— EXCEPTIONS.  159 


offices  to  suffer  loss  of  alertness  and  efficiency  from  excessive 
hours  of  duty.  In  our  judgment,  neither  the  terms  and  purpose 
of  the  statute  nor  the  conditions  of  actual  service  justify  us 
in  upholding  the  contention  here  considered. — Knapp,  G.  J., 
pp.  900-901. 

D.  EXCEPTIONS  TO  THE  APPLICATION  OF  THE  ACT. 

1.  The  proviso  in  Section  2: 

*  *  *  Provided,  That  no  operator,  train  dispatcher,  or  other  em- 
ployee who  by  the  use  of  the  telegraph  or  telephone  dispatches,  reports, 
transmits,  receives,  or  delivers  orders  pertaining  to  or  affecting  train 
movements  shall  be  required  or  permitted  to  be  or  remain  on  duty  for 
a  longer  period  than  nine  hours  in  any  twenty-four-hour  period  in  all 
towers,  ofl3.ces,  places,  and  stations  continuously  operated  night  and 
day,  nor  for  a  longer  period  than  thirteen  hours  in  all  towers,  ofl3.ces, 
places,  and  stations  operated  only  during  the  daytime,  except  in  case 
of  emergency,  when  the  employees  named  in  this  proviso  may  be  per- 
mitted to  be  and  remain  on  duty  for  four  additional  hours  in  a  twenty- 
four-hour  period  on  not  exceeding  three  days  in  any  week:  *  *  *. — 
Sec.  2,  Act  March  4,  1907  [34  Stat,  at  L.,  1415,  I4I6]. 

(a).  "Emergency",  as  used  in  the  Act,  defined. 

Emergencies. — -The  Act  provides  that  operators 
employed  at  night  and  day  stations  or  at  daytime 
stations  may,  in  case  of  emergency,  be  required  to 
work  four  additional  hours  on  not  exceeding  three  days  • 
in  any  week.  Manifestly,  the  emergency  must  be  real 
and  one  against  which  the  carrier  can  not  guard. — 
Adm.  Ruling  No.  287-h. 

U.  S.  V.  Southern  Pacific  Co.,  209  Fed.,  562. 

Circuit  Court  of  Appeals,  8th  Circuit,  November  13,  1913. 
It  does  not  appear  that  Congress  used  the  word  ''emergency" 
in  any  other  than  its  ordinary  or  popular  sense.  Webster 
defines  the  word  "emergency"  as  "Any  event  or  occasional 
combination  of  circumstances  which  calls  for  immediate  action 
or  remedy;  pressing  necessity;  exigency."  The  Century  Diction- 
ary defines  the  word  as  follows:  "Sudden  or  unexpected  happen- 
ing; an  unforeseen  occurrence  or  condition."  The  definition  as 
given  by  the  Century  Dictionary  was  approved  in  SJieean  v. 
City  of  New  Yorl  [75  N.  Y.  Supp.,  802].  *  *  *  Congress 
no  doubt  used  the  word  "emergency"  with  reference  to  the 
business  of  dispatching  trains  when  conducted  in  the  exercise 
of  the  ordinary  care  required  in  such  business. ^(7a7'Za?2^, 
a  J.,  p.  565,567. 

(b).  "Week",*  as  used  in  the  Act,  defined. 
V.  S.  V.  Southern  Pacific  Co.,  209  Fed.,  562. 

Circuit  Court  of  Appeals,  8th  Circuit,  November  13,  1913. 
We  also  think  that  the  word  "week"  in  the  statute  was 
intended  to  mean  a  period  of  seven  days  and  not  necessaiily 

*"In  any  week"  is  construed  to  mean  in   any  calendar  week,  beginning  with 
Sunday. — Adm.  Ruling  No.  287-h. 


160  HOURS  OF  SERVICE  ACT. 

a  calendar  week,  and  that  the  statute  is  not  violated  if  no 
employee  worked  overtime  more  than  three  days  out  of  seven. — 
Carland,  G.  J.,  p.  567. 

2.  Provisos  in  Section  3: 

*  *  *  Provided,  That  the  provisions  of  this  Act  shall  not  apply 
in  any  case  of  casualty  or  unavoidable  accident  or  the  act  of  God;  nor 
where  the  delay  was  the  result  of  a  cause  not  known  to  the  carrier 
or  its  officer  or  agent  in  charge  of  such  employee  at  the  time  said 
employee  left  a  terminal,  and  which  could  not  have  been  foreseen:  Pro- 
vided further  y  That  the  provisions  of  this  Act  shall  not  apply  to  the  crews 
of  wrecking  or  relief  trains.  *  *  *. — Sec.  S,  Act  March  4,  1907,  [S4  Stat, 
at  L.,  1415,  1416]. 

(a).  The  first  proviso  in  section  3    of  the  Act  is  applicable  to  the 
service  of  operators  and  other  employees  handling  train  orders  no 
less  than  to  that  of  employees  in  train  service. 
V.  S.  V.  Missouri  Pacific  Ry.  Co.,  213  Fed.,  169. 

Circuit  Court  of  Appeals,  8th  Circuit,  March  21,  1914. 

And  the  result  is  that  the  plain  terms  of  the  statute,  the 
reason  of  the  case,  and  the  rules  and  authorities  upon  the  con- 
struction of  statutes  to  which  reference  has  been  made  have 
convinced  that  the  proviso  of  section  3  of  the  ''Act  to  promote 
the  safety  of  employees  and  travelers  upon  railroads  by  limiting 
the  hours  of  service  of  employees  thereon,"  approved  March  4, 
1907,  commonly  known  as  the  Hours  of  Service  Act,  exempts  a 
,  common  carrier  from  liability  for  the  penalty  specified  therein 
when  in  a  case  of  casualty,  unavoidable  accident,  or  the  act  of 
God,  it  necessarily  requires  or  permits  a  telegraph  operator, 
train  dispatcher,  or  other  employee  of  their  class  to  serve  beyond 
the  time  limited  for  his  service  by  section  2  of  that  Act.— ^Sanhom, 

a  J.,  p.  175. 

(i).  And  where  an  operator  remained  on  duty  for  a  period  of  7  hours 
in  excess  of  his  normally  permitted  service,  on  account  of  a  wreck 
resulting  from  an  unavoidable  cause :  HELD,  that  such  service 
was  not  limited  to  the  4  additional  hours  permitted  in  cases  of 
emergency. 
D.  S.  V.  Missouri  Pacific  Ry.  Co.,  213  Fed.,  169. 
(b).  ''Casualty"  defined. 
''Casualty,"   like   its   s3rnonyms   "accident"    and   "misfortune,'' 
may  proceed  or  result  from  negligence  or  other  cause  known  or 
unknown. —  Words  and  Phrases  Judicially  Defined,  vol.  2,  1003. 
U.  S.  V.  Kansas  City  Soutliern  Ry.  Co.,  189  Fed.,  471. 

District  Court,  Western  District  of  Arkansas,  July  10,  1911. 

Casualty  has  been  defined  as  an  act  which  proceeds  from 

an  unknown  cause  or  is  an  unusual  effect  of  a  known  cause. 

[Chicago,  St.  L.  &  N.  0.  R.  Co.  v.  PullTnan  Southern  Car  Co.,  139 

U.  S.,  79.]--Trieher,  D.  J.,  p.  477. 

(c).  "Unavoidable  accident"  defined. 

U.  S.  V.  Kansas  City  Southern  Ry.  Co.,  189  Fed.,  471. 

District  Court,  Western  District  of  Arkansas,  July  3,  1911. 
While  some  authorities  hold  that  "unavoidable  accident" 


EXCEPTIONS.  161 


is  synonymous  with  ''act  oi  God,"  the  better  definition,  in  the 
opinion  of  the  court,  is  that  it  must  be  an  inevitable  accident 
which  could  not  have  been  foreseen  and  prevented  by  the  exer- 
cise of  that  degree  of  diligence  which  reasonable  men  would  exer- 
cise under  like  conditions  and  without  any  fault  attributable  to 
the  party  sought  to  be  held  responsible. 

In  Clyde  Y.Richmond  di  D.R.  Co.,  59  Fed.,  394,  it  was  held 
that  ''an  unavoidable  accident  is  one  which  occurs  without  any 
apparent  cause;  at  least  without  fault  attributable  to  anyone.'* 

In  Fishy.  Chapman,  2  Ga.,  349,  it  was  held  that  "an  una- 
voidable accident  is  synonymous  with  inevitable  and  means  any 
accident  produced  by  physical  causes  which  are  inevitable, 
such  as  lightnings,  storms,  perils  of  the  sea,  earthquakes,  inunda- 
tions, sudden  death,  or  illness.'* 

In  Dixon  v.  V.  S.,  1  Brock,  177,  the  court  held  the  words 
"unavoidable  accident"  must  be  construed  as  any  accident 
which  renders  a  breach  of  the  condition  inevitable." 

This  question  has  been  frequentl^p-  before  &he  courts  in  the 
construction  of  the  2S-hour  law  relating  to  the  transportation 
of  live  stock.  In  Newport  News  <&  M.  F.  Co.  v.  V.  S.,  61  Fed., 
488,  Mr.  Justice  Lurton,  then  circuit  judge,  deliveriag  the  opin- 
ion of  the  court  in  an  action  arising  under  the  act  of  March  3, 
1873,  said:  "An  effect  attributable  to  the  negligence  of  the 
appellant  is  not  an  unavoidable  cause.  The  negligence  of  the 
carrier  was  the  cause,  the  unlawful  confinement  and  unreasonable 
detention  but  an  effect  of  that  negligence." 

The  exception  in  that  act  was  "imless  prevented  from  so 
unloading  by  storm  or  other  accidental  cause."  The  trial  judge 
in  that  case  had  charged  the  jury  in  substance  "that  if  they 
found  that  the  live  stock  had  been  confined  in  the  cars  of  the 
defendant  company  for  a  longer  period  than  28  consecutive 
hours  without  unloading  for  rest,  food,  and  water  it  would  be 
no  defense  that  such  confinement  had  been  caused  by  an  acci- 
dent to  the  train  due  to  the  neghgence  of  defendant."  This 
charge  was  approved  by  the  appellate  court  as  a  correct  inter- 
pretation of  the  statute. 

In  the  later  28-hour  law,  enacted  Jime  29,  1906,  chapter 
3594,  34  Stat.,  607,  the  exception  reads:^  "Unless  prevented  by 
storm  or  by^  other  accidental  or  unavoidable  cause  which  can 
not  be  anticipated  or  avoided  by  the  exercise  of  due  diligence 
and  foresight." 

The  construction  of  this  exception  by  the  courts  has  been 
uniform  that  only  some  unavoidable  cause  which  could  not 
have  been  guarded  against  by  the  exercise  of  due  diligence  and 
foresight  is  within  its  meaning.  [  U.  S.  v.  Southern  Pacific  Co., 
157  Fed.,  459;  U.  S,  v.  Atchison,  T.  &  S.  F.  Ry.  Co.,  166  Fed., 
160;  U.  S.  V.  Union  Pacific  R.  Co.,  169  Fed.,  65;  TJ.  S.  v.  Atlantic 
Coast  Line  R.  Co.,  173  Fed.,  764.]  Other  cases  not  arising 
under  the  28-hour  law,  but  holding  as  was  held  in  the  case  above 
cited,  are  Clyde  v.  Richmond  c&  D.  R.  Co.,  59  Fed.,  394;  ''The 
Olympia,''  61  Fed.,  120. 

In  V.  S.  V.  Atchison,  T.  <&  S.  F,  Ry,  Co.  [166  Fed.,  160], 
supra,  it  was  held  that  for  a  carrier  to  avaU  itself  of  a  break- 
50611—15 ^11 


162  HOURS  OF  SERVICE  ACT. 


down  or  wreck  as  an  excuse  it  must  be  shown  that  the  circum- 
stances relied  on  resulted  from  a  cause  which  could  not  have 
been  avoided  by  the  exercise  of  due  diligence  and  foresight. 

In  TJ.  S.  Y.  Atlantic  Coast  Line  R.  Co.  [173  Fed.,  764]  it  was 
held  that  the  failure  of  a  conductor  to  examine  a  waybill  is  not 
a  legal  excuse. 

In  Welles  v.  Castles,  69  Mass.,  325,  it  was  held  ''The  term 
'unavoidable  accident'  has  a  much  more  restricted  meaning  and 
comprehends  only  damage  and  destruction  arising  from  superven- 
ing and  uncontrollable  forces  or  accident. " 

Other  cases  to  the  same  effect  are  Dreyer  v.  People,  58  N.  E., 
620;  Smith  v.  SoutJiern  Ry.  Co.,  40  S.  E.,  86;  Tays  v.  EcJcer,  24 
S.  W.,954;  Crystal  Spring  Dist.  Co.  v.  Cox,  49  Fed.,  555. — Trieher, 
D.  J.,  pp.  477-478. 
U.  S.  V.  Delaware,  L.  cfc   W.  R.  Co.  [unreported]. 

District  Court,  Western  District  of  New  York,  May  22,  1913. 

Now,  for  the  purpose  of  giving  consideration  to  the  proper 
elements  in  this  case,  it  might  be  weU  f or  me  to  define  the  term 
'  * 'unavoidable  accident."  This  term  has  been  defined  by  the 
courts  to  be  such  an  occurrence  as  happens  without  fault  attrib- 
utable to  anyone  and  which  could  not  have  been  foreseen  or 
prevented  by  the  exercise  of  such  a  degree  of  care  and  diligence 
as  a  man  of  ordinary  prudence  would  use  under  like  conditions, 
and  the  courts  have  given  examples,  in  cases  wherein  a  train  has 
been  delayed  by  storms,  extraordinariljr  severe  rains,  Hghtning, 
unexpected  floods,  earthquakes,  sudden  illness,  or  death. — Hazel, 
D.J. 

(d).  "Act  of  God"  defined. 
Act  of  God. — ^Any  accident  due  to  natural  causes  directly  and 
exclusively  without  human  intervention,  such  as  could  not  have 
been  prevented  by  any  amount  of  foresight,  and  pains,  and  care 
reasonable  to  have  been  expected. — Bouvier's  Law  Dictionary, 
vol.  1,  79. 
Z7.  S.  V.  Kansas  City  Southern  Ry.  Co.,  189- Fed.,  471. 

District  Court,  Western  District  of  Arkansas,  July  3,  1911. 
While  it  is  not  advisable  to  give  an  exact  definition  of  that 
phrase  which  will  cover  every  phase,  it  has  been  generally  defined 
as  something  which  occurs  exclusively  by  the  violence  of  nature; 
at  least  an  act  of  nature  which  implies  an  entire  exclusion  of  aU 
human  agencies.  In  Gleeson  v.  V.  M.  R.  R.  Co.,  140  U.  S.,  435, 
an  accident  was  caused  by  a  landslide  caused  hj  a  heavy  rain, 
and  this,  it  was  claimed,  was  an  act  of  God  relieving  the  defend- 
ant from  liabiHty.  This  contention  was  overruled  by  the  court, 
Mr.  Justice  Lamar  dehvering  the  opinion  of  the  court,  saying: 
"There  was  no  evidence  that  the  rain  was  of  extraordinary  char- 
acter or  that  any  extraordinary  results  followed  it.  It  was  a 
common,  natural  event ;  such  as  not  only  might  have  been  fore- 
seen as  probable,  but  also  must  have  been  forelaiown  as  certain 
to  come.  Against  such  an  event  it  was  the  duty  of  the  company 
to  have  guarded.  Extraordinary  floods,  storms  of  unusual  vio- 
lence, sudden  tempests,  severe  frosts,  great  droughts,  lightnings, 
earthquakes,  sudden  deaths,  and  illnesses  have  been  held  to  be 


EXCEPTIONS.  16B 


''acts  of  God";  but  we  know  of  no  instance  in  which  a  rain  of 
not  unusual  violence  and  the  probable  results  thereof,  in  soften- 
ing the  superficial  earth,  have  been  so  considered. " 

In  ''Tie  Majestic, "  166  U.  S.,  375,  it  was  held  that  the  ''act 
of  God"  which  would  exempt  one  from  liability  is  an  act  in  which 
no  man  has  any  agency  whatever. 

In  Bullock  V.  White  Star  Steamship  Co.,  30  Wash.,  448,  it  was 
held  that  "an  act  of  God  to  relieve  from  the  performance  of  a 
contract  must  be  such  as  a  person  of  reasonable  prudence  and 
foresight  could  not  have  guarded  against. " 

For  additional  authorities  on  this  subject  see  Harrison  v. 
Hughes,  125  Fed.,  860,  and  1  Words  and  Phrases,  pages  118  to 
\2Q.—Trieber,  D.  J.,  p.  476. 

(i).  An  act  of  God  will  not  excuse  a  carrier  from  the  liability  imposed 
upon  it  by  the  law  unless  it  is  shown  that  the  results  thereof 
could  not  have  been  prevented  by  any  foresight,  pains,  or  care 
reasonably  to  have  been  expected  in  the  premises. 
BlacTc  V.  Charleston  cfc  TF.  C.  Ry.  Co.,  69  S.  E.,  230  [citmg  Harzburg 
V.  Southern  Ry.  Co.,  44  S.  E.,  75].  See  also  TJ.  S.  v.  Kansas  City 
Southern  Ry.  Co.,  189  Fed.,  471  [citing  U.  S,  v.  Atchison,  T.  <& 
S.  F.  Ry.  Co.,  166  Fed.,  160]. 

(e).  It  is  the  duty  of  carriers  subject  to  the  Act  to  provide  appropriate 
stopping  places  along  their  lines  where  employees  may  rest. 
V.  S.  V.  Southern  Ry.  Co.  [unreported]. 

District  Court,  Western  District  of  South  Carolina,  Oct.  30, 1913. 
A  passenger  train  or  a  freight  train  might  meet  an  unavoid- 
able accident  at  a  way  station.  If  it  is  possible  to  avoid  it,  the 
reason  of  the  rule  is  not  to  delay  and  hold  up  a  train  of  passengers, 
and  if  it  is  a  freight  train  you  can  not  hold  up  a  freight  train  il  at 
the  point  of  the  accident  it  could  be  held  to  the  eight  hours  rest 
that  is  required  by  the  statute  only  at  the  risk  of  danger  to  other 
trains;  therefore  the  statute  makes  certain  provisions  regulating 
in  such  cases  the  enforcement  of  the  statute,  and  I  construe  that 
to  mean  that  the  provisions  of  the  Act,  so  far  as  requiring  16  con- 
secutive hours  of  labor,  mean  only  that  the  train  may  be  op- 
erated after  that  limit  until  a  suitable  stopping  place  can  be 
reached,  and  it  is  the  railroad's  duty  to  have  suitable  stopping 
places  where  rest  can  be  had  for  its  employees  at  proper  places 
along  its  route,  proportionate  to  the  exigencies  of  the  business. — 
Smith,  D,  J. 

(f).  '•  Terminal,**  as  used  in  the  Act,  defined. 

V.  S.  V.  Atchison,  T.  &  S.  F.  Ry.  Co.,  212  Fed.,  1000. 
District  Court,  District  of  Arizona,  April  10,  1914. 

Thus  it  appears  that  the  Commission  to  which  was  entrusted 
the  execution  of  this  law,  and  whose  duty  it  was  to  ascertain 
whether  or  not  its  provisions  were  being  observed,  not  only 
ruled  that  "Employees  unavoidably  delayed  by  reason  of  causes 
that  could  not,  at  the  commencement  of  a  trip,  have  been 
foreseen,  may  lawfully  continue  on  duty  to  the  terminal  or  end 
of  that  run,''  but  actually  used  the  words  "terminal"  and  "end 
of  that  run"  synonymously.     In  other  words,  they  not  only 


164  HOURS  OF  SERVICE  ACT. 


defined  the  word  ''terminar'  to  mean  the  equivalent  of  the  end 
ot  that  run,  but  actually  held  that  employees  unavoidably  de- 
tained by  reason  of  causes  that  could  not,  at  the  commencement 
of  the  trip,  have  been  foreseen,  may  ''lawfully  continue  on  duty 
to  the  terminal  or  end  of  that  run."     *     *     * 

It  does  not  appear  that  the  word  ''terminal"  has  been 
judicially  defined.  According  to  the  usage  of  railroad  men  in 
the  United  States,  as  shown  by  the  evidence  in  this  case,  each 
train  crew  is  assigned  by  the  officers  of  the  company  to  a  definite, 
fixed  run,  beginning  and  ending  at  fixed  points  or  places  on  its 
line  of  railroad,  and  in  my  judgment  these  fixed  beginning  and 
ending  points  of  a  given  run  lor  a  given  crew  are  the  ' '  terminals ' ' 
of  that  run  within  the  meaning  of  the  word  "terminal"  as  used 
in  the  proviso  in  section  3  of  this  Act.  In  the  usage  of  railroad 
men  there  are  different  "runs"  for  different  train  crews  and  also 
different  runs  for  different  employees  on  the  same  train,  and  the 
run  of  an  engineer  on  a  passenger  train  might  be  different  from 
the  run  of  a  conductor  or  brakeman.  There  may  be  one  run  for 
a  freight  crew  and  another  run  for  a  passenger  crew,  and  these 
runs  may  not  be,  and  usually  are  not,  coterminous,  and  one  run 
or  several  runs  for  freight  crews  may  lie  between  the  terminals 
of  the  run  of  a  single  passenger  crew,  and  each  of  these  runs  has 
its  own  terminals.  And  in  applying  this  Act  to  a  given  case 
regard  must  be  had  to  the  line  of  service  in  which  the  train  crew 
or  employees  in  question  were  engaged  at  the  time  of  the  alleged 
violation  of  the  Act,  and  to  that  olone.—Sawtelle,  D.  J.,  pp. 
1005,  1007. 

See  also: 

St.  Louis,  L  M.  &  S.  R.  Co.  v.  State,  143  S.  W.,  913. 
Supreme  Court  of  Arkansas,  January  29,  1912. 

A  railroad  corporation  has  organized  departments  to  which 
are  intrusted  certam  duties.  Amongst  these  is  the  duty  to  pro- 
vide and  keep  in  proper  repair  and  to  operate  the  equipment 
which  its  passenger  and  freight  traffic  may  require.  In  order  to 
effectively  conduct  and  operate  its  trains,  its  line  of  railroad  is 
separated  into  divisions.  The  division  is  the  longest  undivided 
part  of  its  line,  and  within  such  division  the  operation  of  its 
trains  is  managed  and  supervised  by  separate  and  distinct 
officials  who  are  known  as  division  officers,  with  different  titles, 
according  to  their  varied  duties.  Within  such  division  there  is 
a  place  or  point  where  these  officials  are  located,  and  such  place 
is  Known  as  division  headquarters.  This  is  the  place  where  the 
division  officials  who  manage,  control,  and  superintend  the 
operation  and  repair  of  trains  and  equipments  which  are  em- 
ployed within  such  division  are  located.  Such  a  place  is  a 
division  point.  Each  division  has  its  beginning  and  end  fixed 
upon  the  line  of  railroad.  At  these  limits  of  the  divisions  trains  are 
made  up  and  employees  operating  such  trains  take  charge  thereof 
to  make  their  rmis  from  one  end  of  the  division  to  the  other. 
At  these  places,  upon  the  end  or  beginning  of  a  division,  the 
trains  end  their  runs.  Here  engines  and  cars  are  inspected  and 
repaired,  or  taken  out  of  the  train  altogether,  and  the  train  is  in 


EXCEPTIONS.  165 


effect  made  up  again  and  either  returned  upon  its  trip  on  the 
same  division,  or  sent  on  to  another  division  in  the  course  of  its 
run.  Here  the  employees  or  crews  operating  the  trains  leave 
them  and  take  their  rest  preparatory  for  another  run,  or  the 
crews  of  the  trains  are  here  changed.  At  the  place  where  this 
is  done  regularly  and  constantly  or  substantially  so,  it  is  usual 
that  the  engines  and  cars  are  repaired  or  new  ones  constructed. 
Such  work  is  also  ordinarily  done  at  the  place  where  the  division 
headquarters  are  located.  These  places,  then,  are  division 
points. — Frauenihalj  J.,  pp.  914-915. 

(g).  The  occurrence,  after  a  crew  has  left  a  terminal,  of  a  casualty,  an 
unavoidable  accident  or  an  act  of  Grod,  resulting  in  the  detention 
of  the  crew  on  duty  in  excess  of  16  hours,  suspends  the  operation 
of  the  statute  for  the  given  trip. 

Proviso  in  Sec.  3. — The  instances  in  which  tlie  Act 
will  not  apply  include  only  such  occurrences  as  could 
not  be  guarded  against;  those  which  involved  no 
neglect  or  lack  of  precaution  on  the  part  of  the  carrier, 
its  agents,  or  officers;  and  they  serve  to  waive  the  ap- 
plication of  the  law  to  employees  on  trains  only  until 
such  employees,  so  delayed,  reach  a  terminal  or  relay 
point. — Adm.  Ruling  No.  287-i. 

Proviso  in  Sec.  3. — Section  3  of  the  law  provides 
that:  "The  provisions  of  this  Act  shall  not  apply  in  any 
case  of  casualty  or  unavoidable  accident  or  the  act  of 
God;  nor  where  the  delay  was  the  result  of  a  cause  not 
known  to  the  carrier  or  its  officer  or  agent  in  charge  of 
such  employee  at  the  time  said  employee  left  a  terminal, 
and  which  could  not  have  been  foreseen." 

Any  employee  so  delayed  may  therefore  continue 
on  duty  to  tne  terminal  or  end  of  that  nm.     The  pro- 
viso quoted  removes  the  'appHcation  of  the  law  to  that 
trip. — Adm.  Ruling  No.  88-b. 
U.  S.  V.  Atchison,  T.  c&  S.  F.  Ry.  Co.,  212  Fed.,  1000. 
District  Court,  District  of  Arizona,  April  10,  1914. 

We  can  not  adopt  the  interpretation  contended  for  by  the 
Government  in  this  case,  namely,  that,  if  the  train  was  delayed 
by  reason  of  any  of  the  causes  set  out  in  the  proviso  in  section  3 
of  the  Act,  the  train  crew  may  not  lawfully  continue  on  duty  to 
the  terminal  or  end  of  that  run.  This  court  holds  that  in  such 
a  case  there  is  nothing  in  the  Act  which  requires  a  carrier  to  pro- 
ceed to  the  next  suitable  stopping  place  and  there  tie  up  and 
reheve  the  crew,  or  which  prevents  the  crew  from  continumg  on 
duty  and  proceeding  on  their  trip  to  the  terminal  or  end  of  that 
run,  which  in  this  case  was  at  Parker,  even  though  at  the  time 
they  left  Summit,  the  place  where  the  train  was  delayed  and 
remained  on  account  of  the  unavoidable  accident  or  casualty 
which  occasioned  the  delay,  they  had  no  reasonable  expectation 
of  being  able  to  reach  the  end  of  their  run,  Parker,  within  the 
16-hour  fimit.  In  the  opinion  of  this  court,  such  a  construction 
is  not  authorized. — Sawtelle,  D.  J.,  p.  1006.  [See  defiiiition  of 
"termina'l"  as  used  in  the  Act,  Item  2-(f),  p.  163,  ante,] 


166  HOURS  OF  SERVICE  ACT. 


See  also: 

V,  S.  V.  Nortliern  Pacific  Ry.  Co.,  215  Fed.,  64. 

Circuit  Court  of  Appeals,  9th  Circuit,  August  3,  1914. 

The  evidence  showed  without  conflict  that,  on  the  occasion  in 
question,  the  crew  in  question  left  Tacoma  on  train  303  at  1.40 
p.  m.,  of  May  12,  1913,  and  was  due  to  meet  passenger  train 
No.  362  of  the  Oregon-Washington  Eailroad  &  Navigation 
Company  at  the  station  of  South  Tacoma  at  1.56  p.  m.,  of  the 
same  day,  but  that  train  362  was  derailed  between  Lake  View 
and  South  Tacoma  at  about  1.50  p.  m.,  about  6  minutes  before 
the  regular  time  of  the  meeting  of  the  two  trains.  That  derail- 
ment tore  up  the  track,  overturned  the  engine  and  coaches  of 
train  362,  resulting  in  the  death  and  mjury  of  a  number  of 
passengers,  and  prevented  train  303,  on  which  was  the  crew  here 
m  question,  from  proceeding  on  to  Portland  until  about  6  p.  m. 
of  the  same  day,  when  that  crew,  with  the  passengers  of  train  303, 
were  transferred  to  passenger  train  314,  whicli  had  come  up 
from  Portland.  Tram  314,  with  the  crew  and  passengers  of 
train  303,  was  then  backed  to  a  place  near  Centraha,  wnere  it 
was  turned  around  and  then  proceeded  to  Portland,  reaching 
there  at  12.30  a.  m  of  May  13th.  The  crew  in  question,  after 
being  off  duty  about  6  hours  and  a  half  at  Portland,  returned  to 
Tacoma  on  its  regular  run  on  train  308,  and  in  doing  so  was  on 
duty  about  17  hours  without  having  had  8  hours  off  duty. 

The  demoralization  of  the  traffic  over  the  road  at  the  time 
in  question,  growing  out  of  the  derailment,  is  clearly  shown  by 
the  uncontradicted  testimony  in  the  case;  indeed,  it  is  expressly 
conceded  by  counsel  for  the  Government  that  the  delay  of  the 
crew  in  question  on  its  regular  run  from  Tacoma  to  Portland 
was  due  to  the  * 'unavoidable  accident  at  South  Tacoma.'' 
It  is  equally  plain  from  the  undisputed  evidence  that  the  accident 
was  the  sole  cause  why  the  crew  in  question  was  engaged  on 
its  run  for  more  than  16  hours  without  a  rest  of  8  consecutive 
hours,  so  that  the  question  is  whether  the  circumstances  of  the 
case  bring  it  within  the  first  proviso  to  section  3  of  the  Act  of 
Congress,  upon  which  the  action  is  based. 

Undoubtedly  the  train  dispatcher  both  at  Tacoma  and  at 
Portland  would,  under  ordinary  conditions,  be  held  to  have  known 
that  the  delay  of  train  303  at  South  Tacoma,  and  the  transfer  of 
its  crew  and  passengers  to  train  314,  could  not  have  enabled  them 
to  reach  Portland  in  time  for  the  same  crew  to  return  to  Tacoma 
on  its  regular  train  308  without  being  kept  on  duty  for  more 
than  16  hours  without  a  consecutive  rest  of  8.  hours;  but  the 
evidence  is  uncontradicted  to  the  effect  (indeed,  it  could  hardly 
have  been  otherwise)  that  both  dispatchers  were  deeply  en- 
grossed in  arranging  and  caring  for  the  movement  of  the  large 
number  of  trains,  including  the  necessary  wrecking  outfits, 
together  with  the  numerous  mcidentals,  necessarily  growing  out 
of  such  a  disaster.  Under  such  circumstances,  it  would  not, 
we  think,  be  reasonable  to  hold  the  company  liable  for  their 
failure  to  check  up  the  time  of  service  of  the  various  crews  of 
the  very  numerous  trains  passing  over  this  particular  piece  of 
road  at  that  particular  time.— Ross,  C.  J.,  pp.  66-67. 


EXCEPTIONS.  _  167 


But  see: 

TJ.  S.  V.  Southern  By.  Co.  [unreported]. 

District  Court,  Western  District,  South  Carolina,  Oct.  30, 1913. 

Now,  I  charge  you,  gentlemen,  that  if  this  accident  causing 
delay  had  occurred,  say,  between  Greers  and  Spartanburg,  or 
before  reaching  Greei-s,  or  if  the  train  had  left  Spartanburg  with 
the  reasonable  expectation  of  being  able  to  make  Greenville 
within  the  16  hours,  and  there  occurred  an  unexpected  and  un- 
avoidable delay  from  the  act  of  God,  or  unavoidable  casualty  or 
unavoidable  accident  between  Spartanburg  and  Greenville,  that 
in  that  case  the  railroad  would  have  had  a  right  to  require  these 
train  operators  to  operate  that  train  to  the  first  proper  stopping 
place,  which  might  vary  according  as  it  was  a  passenger  or  a 
freight  train;  but  at  the  first  proper  stopping  place  where  its 
crews  could  be  replaced  or  the  tram  could  be  tied  up  the  crew 
should  have  been  given  a  rest;  and  that  if  Spartanburg  was  a 
proper  stopping  place,  or  if  Spartanburg  Junction  was — and 
from  this  testimony  if  you  believe  it  was — at  which  this  train 
could  have  either  had  its  crew  replaced  or  at  which  it  could  have 
tied  up  so  as  to  give  the  crew  on  service  necessary  rest,  then  it 
was  the  duty  of  the  rajlway  officials  to  so  provide,  as  they  knew 
that  it  could  not  reach  Greenville  within  the  stipulated  time. 
And  the  same  thing  as  to  Greers ;  when  the  train  was  reported  at 
Greers  it  had  already  exceeded  the  statutory  limit  of  time  serv- 
ice, and  I  charge  you  that  from  the  testimony  it  appears  that  the 
train  could  have  tied  up  at  Greers,  and  it  does  not  appear  that 
it  was  a  passenger  train,  or  that  there  was  any  extraordinary 
*  exigency  that  required  this  freight  train  to  go  on  to  Greenville 
so  as  to  exceed  the  statutory  limit  of  time.  Therefore,  if  you 
find  that  either  at  Spartanburg  or  at  Greers  this  train  rea- 
sonably could  have  been  tied  up,  under  this  testimony,  so  as  to 
give  the  employees  the  rest  required  by  the  statute,  the  railroad 
oflicials  were  not  justified  in  permitting  them  to  exceed  the 
statutory  limit  of  labor.     *     *     * 

On  that  I  rule  that  the  occurrence  of  an  accident  or  delay 
by  the  act  of  God  or  any  case  of  casualty  or  unavoidable  accident 
while  the  train  is  in  course  of  transit  from  one  terminal  point  to 
another  does  not  mean  that  the  entire  Act  is  suspended  as  to 
that  train.  To  hold  that  the  entire.  Act  would  be  suspended  as 
to  that  train  would  be  to  hold  that  the  16  hours  limit  did  not 
apply  to  any  train  between  terminals  during  the  progress  of 
whose  transit  between  terminals  any  delay  occurred  from  the 
exempting  causes  named  in  the  statute.  The  delay  might  be  any 
number  of  hours,  from  5  to  10,  and  I  hold  that  the  statute  does 
not  mean  that  as  to  that  train  the  operative  period  of  service  is 
extended  from  16  to  21  or  26  hours,  according  as  some  delay 
from  the  exempting  causes  may  occur  whilst  the  train  is  in 
transit.  I  construe  the  statute  to  mean  that  the  hours  of  serv- 
ice shall  be  extended  in  such  cases  only  so  far  as  may  be  necessary 
to  permit  the  train  to  be  operated  to  a  point  at  which,  due  re- 
gard being  had  to  all  the  circumstances  of  the  particular  case  and 
the  character  of  the  train,  the  train  crew  could  be  relieved  or  be 
allowed  to  take  the  rest  required  by  the  statute. — Smithj  D,  J, 


168  M  HOUES  OF  SEEVICE  ACT. 


TJ.  S.  V.  AtcUson,  T,  <&  S.  F.  Ry.  Co.,  212  Fed.,  1000. 
District  Court,  District  of  Arizona,  April  10,  1914. 

The  proviso  in  the  statute  allows  the  carrier  credit  for  all 
lawful  delays  caused  to  a  train  crew  on  its  run  by  casualty,  una- 
voidable accident,  or  act  of  God,  or  by  any  cause  not  known  to, 
or  which  could  not  have  been  foreseen  by,  the  officers  or  agents 
of  the  carrier  at  the  time  the  crew  started  from  its  terminal  on 
its  run,  but  allows  no  credit  for  delays  not  covered  by  the  proviso ; 
and  consequently  if  the  train  is  delayed  by  casualty,  accident, 
act  of  God,  or  other  lawful  cause  for  one  hour  at  one  place,  and 
another  hour  at  another  place,  and  then  is  delayed  another  hour 
at  another  place  by  a  cause  which  was  known  to  or  could  have 
been  foreseen  by  the  officers  and  agents  of  the  carrier  at  the 
time  the  crew  left  the  terminal  or  started  on  its  run,  and  the 
regular  schedule  time  of  the  train  was  16  hours,  and  in  conse- 
quence of  the  delays  mentioned  the  time  taken  for  the  nm  is  19 
hours,  the  carrier  is  liable,  because  it  was  entitled  to  have  spent 
18  hours  only  on  the  run,  and  not  19  hours.  It  bein^  thus 
unlawful  to  haul  this  car  with  chains,  and  the  evidence  without 
dispute  showing  that  delays  to  the  train  between  Cliffs  and 
Winslow  were  caused  by  this  car,  it  follows  that  such  delays  were 
not  the  result  of  casualty  or  unavoidable  accident,  and  not 
within  the  proviso. — Sawtelle,  D.  J.,  p.  1008. 

U,  S.  V.  Great  Northern  Ry.  Co.  [unreported]. 

District  Court,  District  of  Minnesota,  June  4,  1913. 

I  passed  upon  the  question  of  the  materiality  of  this  evidence 
when  it  was  offered,  and  ruled  it  out  on  the  theory  that  if  an 
unavoidable  accident  did  occur  which  delayed  a  train  5  hours, 
and  I  will  say  for  the  sake  of  illustration  the  first  5  hours  out  of 
the  16  hours,  so  that  the  obstruction  caused  by  unavoidable 
accident  was  entirely  removed  and  the  train  started  agaiii  after 
5  hours,  that  that  would  not  justify  a  railroad  company  in  run- 
ning that  crew  by  any  number  of  stations  where  it  could  be  tied 
up,  or  running  by  a  station  when  the  16  hours  had  expired.  The 
theory  of  the  defendant  is  that,  the  delay  having  been  caused 
by  an  unavoidable  accident  for  5  hours,  the  company  had  the 
right  to  use  the  crew  for  so  much  longer.  I  am  satisfied  that 
this  is  an  incorrect  construction  of  the  statute,  and  on  that 
theory  I  ruled  it  out. —  Willard,  D.  J. 

3.  The  excess  service  of  employees  subject  to  the  Act  is  not  to  be  ex- 
cused by  the  occurrence  of  conditions  ordinarily  to  be  expected 
in  the  operation  of  trains : 
U.  8.  V.  Southern  Pacific  Co.,  209  Fed.,  562. 

Circuit  Court  of  Appeals,  8th  Circuit,  November  13,  1913. 
The  case  first  cited  [U.  S.  v.  Kansas  C.  S.  Ry.  Co.,  202  Fed., 
828]  was  an  action  under  the  first  clause  of  section  2  of  the  law 
now  under  consideration.  This  court  in  that  case  simply  held 
that  all  the  usual  causes  of  delay  incident  to  the  operation  of 
trains  standing  alone  would  not  excuse  the  railroad  company 
under  the  terms  of  the  first  proviso  of  section  3,  but  that  the 
company  must  further  show  that  such  delays  could  not  have  been 
foreseen  and  prevented  by  the  high  degree  of  diligence  demanded. 
Of  course  this  must  be  so.     If  the  usual  causes  of  delay  incident 


EXCEPTIONS.  169 


to  operation  were  to  excuse,  then  the  statute  would  be  wholly 
ineffective  to  accomplish  its  purpose. — Carland,  C.  J.,  p.  566. 

V.  S.  V.  Kansas  City  Southern  Ry.  Co.,  202  Fed.,  828. 

(a).  Broken  rails. 

U.  S.  V.  Galveston,  E.  cfe  S.  A.  Ry.  Co.  [unreported]. 

District  Court,  Western  District  of  Texas,  January  12,  1912. 
There  is  another  delay  claimed  when  the  train  lost  15 
minutes  at  Weimer  because  of  a  broken  rail.  I  do  not  think 
that  this  is  entitled  to  consideration  as  an  unforeseen  delay. 
The  track  ought  to  have  been  heavy  enough  to  bear  the  ordinary 
traffic  over  it. — Foster,  D.  J. 

(b).  Cleaning  fires. 

U.  S.  V.  Kansas  City  Southern  Ry.  Co.,  189  Fed.,  471 ;  U.  S.  v.  Kan- 
sas City  Southern  Ry.  Co.,  202  Fed.,  828. 

(c).  Congestion  of  traffic. 

U.  S.  V.  Northern  Pacific  Ry.  Co.,  D.  C,  W.  D.  Washington,  Feb.  13, 
1914,  Cushman,  D.  J.  [unreported]. 

(d).  Delay  in  starting  trains. 

TJ.  S.  V.  Kansas  City  Southern  Ry.  Co.,  189  Fed.,  471;  Z7.  S.  v.  Kan- 
sas City  Southern  Ry.  Co.,  202  Fed.,  828. 

(e).  Engine  failures  dne  to  mechanical  defects.  [Defective  shaker 
rods,  leaky  flues,  etc.  ] 

U.  S.  V.  Kansas  City  Southern  Ry.  Co.,  189  Fed.,  471;  Washington 
P.  cfe  C.  Ry.  Co.  V.  Magruder,  198  Fed.,  218;  Z7.  S.  v.  Kansas 
City  Southern  Ry.  Co.,  202  Fed.,  828.  See  also  Missouri,  K.  <& 
T.  Ry.  Co.  of  Texas  v.  TJ.  S.,  231  U.  S.,  112  [affirming  the  judg- 
ment of  the  Circuit  Court  of  Appeals  for  the  5th  Circuit,  and, 
in  turn,  of  the  District  Court  for  the  Eastern  District  of  Texas 
(both  decisions  unreported)]. 

(f).  Frost  on  rails  and  heavy  tonnage,  necessitating  doubling. 

U.  S.  V.  Missouri,  K.  cfe  T.  Ry.  Co.  of  Texas,  D.  C,  E.  D.  Texas, 
May  30,  1912,  Russell,  D.  J.  [unreported].  Refusal  of  theDisrict 
Court  to  direct  a  verdict  for  the  defendant  on  the  ground  of  this 
assumed  defense,  inter  alia,  sustained  by  the  Circuit  Court  of  Ap- 
peals for  the  5th  Circuit  [unreported]  and  in  turn  by  the  Supreme 
Court  in  Missouri,  K.  cfc  T.  Ry.  Co.  v.  TJ.  S.,  23r  U.  S.,  112. 

(g).  Hot  boxes. 

TJ.  S.  V.  Kansas  City  Southern  Ry.  Co.,  189  Fed.,  471;  Washington, 
P.  c&  C.  Ry.  Co.  V.  Magruder,  198  Fed.,  218;  TJ.  S.  v.  Minne- 
apolis, St.  P.  cfc  S.  S.  M.  Ry.  Co.,  D.  C,  D.  North  Dakota, 
Jan.  21,  1913,  Amidon,  D.  J.  [unreported]. 

(h).  Injectors  failing  on  account  of  insufficiency  or  quality  of  water. 
Missouri,  K.  cfc  T.  Ry.  Co.  of  Texas  v.  U.  S.,  231  U.  S.,  112. 
Supreme  Court,  November  10,  1913. 

It  is  urged  that  in  one  case  the  delay  was  the  result  of  a 
cause,  a  defective  injector,  that  was  not  known  to  the  carrier, 
and  could  not  have  been  foreseen  when  the  employees  left  a 
terminal,  and  that  therefore  by  the  proviso  in  section  3  the  Act 
does  not  apply.    But  the  question  was  raised  only  by  a  request 


170  HOURS  OF  SERVICE  ACT. 


to  direct  a  verdict  for  the  defendant  and  the  trouble  might  have 
been  found  to  be  due  to  the  scarcity  and  bad  quahty  of  the 
water,  which  was  well  known. — Holmes,  Justice,  p .  11 9 .  [Affirmhig 
the  judgment  of  the  Circuit  Court  of  Appeals  for  the  5th  Circuit, 
in  turn  affirming  that  of  the  District  Court  for  the  Eastern 
District  of  Texas  (both  decisions  unreported).] 

— Per  Contra. 

U.  S.  V.  Chicago,  M.  &  St.  P.  Ry.  Co.,  212  Fed.  574. 
— (i).  Intermissions  for  meals. 

U.  S,  V.  Chicago,  M.  cfc  P.  S.  Ry.  Co.,  197  Fed.,  624;  U.  S.  v. 
Kansas  City  Southern  Ry.  Co.,  202  Fed.,  828;  U.  S.  v.  Northern 
Pacific  Ry.  Co.,  213  Fed.,  539;  Osborne's  AdrnW.  v.  Cincinnati, 
N.  0.  cfc  T.  P.  Ry.  Co.,  164  S.  W.,  818;  TJ.  S.  v.  Northern 
Pacific  Ry.  Co.,  D.  C,  W.  D.  Washington,  Feb.  13,  1914,  Cush- 
man,  D.  J.  [unreported]. 

' — (j).  Meeting  or  passing  trains. 

U.  S,  V.  Kansas  City  Southern  Ry.  Co.,  189  Fed.,  471  [citmg  U.  S.  v. 
Southern  Pacific  Co.,  157  Fed.,  459];  U.  S.  v.  Denver  &  R.  G.  R. 
Co.,  197  Fed.,  629;  U.  S.  v.  Kansas  City  Southern  Ry.  Co.,  202 
Fed.,  828;  Great  Northern  Ry.  Co.  v.  U.  S.,  211  Fed.,  309; 
U.  S.  V.  Galveston,  H.  &  S,  A.  Ry.  Co.,  D.  C,  W.  D.  Texas, 
Jan.  12,  1912,  Foster,  D.  J.  [unreported];  U.  S.  v.  Missouri, 
K.  cfc  T.  Ry.  Co.  of  Texas,  D.  C,  E.  D.  Texas,  May  30,  1912, 
Russell,  D.  J.  [unreported].  Refusal  of  District  Court  to  direct 
a  verdict  for  defendant  on  the  groimd  of  such  delays,  inter  alia, 
sustained  by  the  Court  of  Appeals  for  the  5th  Circuit  [unreported] 
and  in  turn  by  the  Supreme  Court,  in  Missouri,  K.  cfe  T.Uy.  Co. 
of  Texas  v.  TJ.  S.,  231  U.  S.,  112;  TJ.  S.  v.  Northern  Pacific  Ry. 
Co.,  D.  C,  W.  D.  Washington,  Feb.  13,  1914,  Cushman,  D.  J. 
[um-eported]. 

— (k).  Poor  coal. 

TJ,  S,  V.  Kansas  City  Southern  Ry.  Co.,  189  Fed.,  471;  Washington, 
P.  cfc  C.  Ry.  Co.  V.  Magruder,  198  Fed.,  218;  TJ.  8,  v.  Kansas 
City  Southern  Ry.  Co.,  202  Fed.,  828. 

— (1).  Pnlled-out  or  broken  drawbars. 

U.  S.  V.  Galveston,  H.  dc  S.  A.  Ry.  Co.,  D.  C,  W.  D.  Texas,  Jan.  12, 
1912,  Foster,  D.  J.  [unreported];  TJ.  S.  v.  Minneapolis,  St.  P.  & 
S.  S.  M.  Ry.  Co.,  D.  C,  D.  North  Dakota,  Jan.  21,  1913,  Amidon, 
D.  J.  [unreported].    See  also  Item  (n),  post. 

' — (m).  Rnnning  for  or  taking  water : 

U,  S.  V.  Missouri,  K.  d;  T.  Ry.  Co.  of  Texas,  D.  C,  E.  D.  Texas, 
May  30,  1912,  Russell,  D.  J."  (unreported).  [Refusal  of  District 
Court  to  direct  a  verdict  for  defendant  on  the  ground  of  such 
delay,  inter  alia,  sustained  by  the  Circuit  Court  of  Appeals  for 
the  5th  Circuit  (imreported)  and  in  turn  by  the  Supreme  Court 
in  Missouri,  K  &  T.  Ry.  Co.  of  Texas  v.  TJ,  S,,  231  U.  S.,  112]. 

— (n).  Unnecessary  hauling  of  defective  cars   by  means   of   chains 
instead  of  drawbars: 
TJ,  S,  V.  Atchison,  T,  cfc  S,  F.  Ry.  Co.,  212  Fed.,  1000.    See  also 
Itbu"(L)/'  ante. 


EXCEPTIONS.  171 


(o).  Waiting  for  a  helper  engine. 
U,  S.  V.  Chicago,  M.  <&  P.  S.  By.  Co,,  197  Fed.,  624. 
(p).  Waiting  for  orders. 

U.  S.  V.  Northern  Pacific  By.  Co.,  D.  C,  W.  D.  Wasliington,  Feb . 
13,  1914,  Cushman,  D.  J.  [unreported]. 

(q).  Wrecks,  if  preventable  by  the  exercise  of  diligence  and  fore- 
sight. 

V.  S.  V.  Kansas  City  Southern  By.  Co.,  189  Fed.,  471  [citing  U.  S, 
V.  Atchison,  T.  &  S.  F.  By.  Co.,  166  Fed.,  160]. 

(r).  But  excessive  heat  in  certain  circumstances  :  HELD  to  be  an 
excuse  within  the  purview  of  the  Act. 

U.  S.  V.  Boston  6s  M.B.  Co.  [unreported]. 

District  Court,  District  of  New  Hampshire,  October  29,  1912. 
But  there  is  substance  in  the  evidence  that  the  excessive 
heat  was  such  that  the  men  who  were  charged  with  the  duty  of 
landing  this  train  at  Intervale,  a  distance  of  73  miles,  were  not 
able  to  do  full  work  and  that  delay  resulted;  and  the  conductor 
says  it  was  a  local  train  and  that  they  made  15  stops,  at  which 
they  left  or  took  on  freight;  and  that  there  were  heavy  packages 
or  commodities,  consisting  of  fruits,  meats,  etc.,  for  the  summer- 
houses  ;  and  that  at  some  places  they  left  cars  and  did  switching 
and  operated  on  the  sidings ;  and  the  engineer  described  that  the 
heat  was  so  excessive  m  the  engine  whenever  the  engine  stopped 
it  was  necessary  for  him  to  get  off  the  train  and  get  onto  the 
ground,  and  that  the  temperature  was  up  to  120*^  or  thereabouts, 
and  that  the  box  cars  were  excessively  heated.  You  know  about 
these  things.  You  have  worked  in  connection  with  box  cars,  I 
suppose,  and  loiow  about  those  things,  and  you  know — I  am 
perfectly  well  satisfied  that  you  know  about  the  cold  of  New  Eng- 
land, and  I  trust  you  know  something  about  the  heat  and  the  effect 
of  heat,  whether  it  depresses  a  man,  whether  he  can  perform  the 
usual  amount  of  physical  and  mental  labor  in  excessive  heat  dur- 
ing periods  of  excessive  heat  or  whether  he  can  not.  You  know 
all  about  that;  the  situation  has  been  described;  I  can't  add 
anything  to  it.  One  witness  said  he  thought  if  a  man  did  two- 
thirds  what  he  would  do  imder  normal  conditions  that  he  did  all 
that  he  could  do — all  that  he  could  be  expected  to  do.  Now,  if 
you  think  by  reason  of  the  excessive  heat,  which  I  suppose  coun- 
sel will  agree  was  a  result  of  the  act  of  God,  at  all  events  it  was 
something  unforeseen  at  4  or  5  o'clock  in  the  morning,  there  was 
a  delay  equal  to  30  minutes,  you  should  deduct  that  from  the  16 
hours  and  a  half.  If  it  was  30  minutes  or  more,  you  should 
deduct  it,  and  after  deducting  whatever  delay  you  think  was 
incident  to  the  heat,  if  the  time  left  was  less  than  16  hours,  or  not 
exceeding  16  hours,  then  there  should  be  a  verdict  for  the  defend- 
ant, so  far  as  the  counts  are  concerned,  which  relate  to  the  engi- 
neer and  fireman. — Aldrich,  D.  J. 


172  HOURS  OF  SERVICE  ACT. 


—  (s).  And,  while  the  sudden  illness  of  an  operator  will  not  in  all  cases 
justify  the  retention  of  another  employee  on  duty  in  excess  of  the 
permitted  periods,  such  illness,  coupled  with  the  inability  of  the 
carrier  to  procure  a  relief  operator,  may  in  certain  circumstances 
constitute  an  emergency  within  the  purview  of  the  Act. 
TJ.  S,  V.  Southern  Pacific  Co.,  209  Fed.,  562. 

Circuit  Court  of  Appeals,  8th  Circuit,  November  13,  1913. 

Applying  the  law  to  the  facts,  the  (question  arises:  Did  the 
illness  of  Johnson,  coupled  with  the  inability  of  the  company  to  ob- 
tain a  man  to  take  his  place  during  the  time  he  was  ill,  constitute 
an  emergency  within  the  meaning  of  the  statute,  so  as  to  relieve 
the  company  from  the  penalties  which  would  otherwise  result 
from  requiring  Hoover,  Sewall,  Small,  and  Miller  to  remain  on  duty 
for  a  longer  period  than  9  hours  in  a  24-hour  period  ?     *     *     * 

EUis  y.  TJ.  S.  [206  U.  S.,  246]  is  a  case  where  the  Supreme 
Court  decided  that  the  disappointment  of  a  contractor  with 
regard  to  obtaining  some  of  nis  materials,  did  not  create  an 
extraordinary  emergency  within  the  meaning  of  act  of  August  1, 
1892  [27  Stat.,  340].  In  disposing  of  this  particular  question,  the 
court  said:  '^He  found  more  difficulty  than  he  expected,  although 
he  expected  some  trouble  in  getting  certain  oak  and  pine  piles 
called  for  by  the  contract,  and,  having  been  delayed  by  that  cause, 
he  permitted  his  associate  in  the  business  to  employ  men  for  nine 
hours,  in  the  hurry  to  get  the  work  done.  The  judge  instructed 
the  jury  that  the  evidence  did  not  show  an  'extraordinary  emer- 
gency' within  the  meaning  of  the  Act.  The  judge  was  right  in 
ruling  upon  the  matter.  Even  if,  as  in  other  instances,  a  nice 
case  might  be  left  to  the  jury,  what  emergencies  are  within  the 
statute  is  merely  a  constituent  element  of  a  question  of  law,  since 
the  determination  of  that  element  determines  the  extent  of  the 
statutory  prohibition  and  is  material  only  to  that  end."     *     *     * 

Speaking  generally,  sickness  and  death  are  the  common  lot 
of  all  and  must  be  expected,  but  within  the  expectancy  of  life 
health  and  not  sickness  is  the  general  rule.  In  view  of  the  show- 
ing that  for  a  period  of  seven  years  only  one  other  unexpected 
absence  of  an  employee  on  account  of  illness  or  other  cause  had 
occurred,  we  think  the  company  was  not  so  negligent  in  not 
having  an  extra  dispatcher  on  hand  to  take  Johnson's  place  as 
to  deprive  it  of  the  privilege  granted  by  the  law.    *     *     * 

We  do  not  decide  that  sudden  illness  in  all  cases  or  standing 
alone  would  constitute  an  emergency.  Each  case  must  depend 
upon  its  own  facts.  Sudden  illness  might  continue  for  such  a 
number  of  days  as  to  cease  to  be  an  emergency.  Under  our 
rulmg  in  the  Kansas  City  Southern  Case,  supra,  [202  Fed.,  828] — 
to  the  effect  that  the  statute  in  question,  being  highly  remedial, 
should  be  liberally  construed  so  that  its  purposes  maybe  effected — 
we  think  the  illness  of  Johnson,  coupled  with  the  inabihty  of  the 
company  to  secure  other  help  during  the  time  he  was  sick,  con- 
stituted an  emergency  within  the  meaning  of  the  law. — Carland, 
C.  J.,  pp.  565,  566,  567. 

— (t).  But  economical  reasons  alone  can  never  justify  a  violation  of 
the  Act. 

U.  S.  V.  Kansas  City  Southern  Ry.  Co.,  202  Fed.,  828. 


HOURS  OF  SERVICE  REPORTS.  178 


E.  CARRIERS'  HOURS  OP  SERVICE  REPORTS. 

1.  Tlie  Interstate  Commerce  Commission  is  authorized  by  Section  20 
of  the  Act  to  regulate  commerce  to  require  all  carriers  subject 
to  the  Hours  of  Service  Act  to  report  all  instances  of  excess  serv- 
ice occurring  on  their  respective  lines. 

*  *  *;  and  if  any  carrier,  person,  or  corporation  subject  to  the 
provisions  of  this  Act  shall  fail  to  make  and  file  said  annual  reports 
within  the  time  above  specified,  or  within  the  time  extended  by  the 
Commission,  for  making  and  filing  the  same,  or  shall  fail  to  make 
specific  answer  to  any  question  authorized  by  the  provisions  of  this 
section  within  thirty  days  from  the  time  it  is  lawfully  required  so  to 
do,  such  party  shall  forfeit  to  the  United  States  the  sum  of  one  hun- 
dred dollars  for  each  and  every  day  it  shall  continue  to  be  in  default 
with  respect  thereto.  The  Commission  shall  also  have  authority  by 
general  or  special  orders  to  require  said  carriers,  or  any  of  them,  to 
file  monthly  reports  of  earnings  and  expenses,  and  to  file  periodical 
or  special,  or  both  periodical  and  special,  reports  concerning  any  mat- 
ters about  which  the  Commission  is  authorized  or  required  by  this  or 
any  other  law  to  inquire  or  to  keep  itself  informed  or  which  it  is 
required  to  enforce;  and  such  periodical  or  special  reports  shall  be 
under  oath  whenever  the  Commission  so  requires;  and  if  any  such  car- 
rier shall  fail  to  make  and  file  any  such  periodical  or  special  report 
within  the  time  fixed  by  the  Commission,  it  shall  be  subject  to  the 
forfeitures  last  above  provided.  Sec.  20 ^  Act  February  4, 1887  [24  Stat,  at  L., 
S79],  as  amended  June  29^  1906  [34  Stat,  at  L.,  684],  and  June  18,  1910  [36  Stat, 
at  L.,  539,556.] 

It  is  ordered,  That  all  carriers  subject  to  the  provisions  of  the  Act 
entitled  "An  Act  to  promote  the  safety  of  employees  and  travelers 
upon  railroads  by  limiting  the  hours  of  service  of  employees  thereon," 
approved  March  4,  1907,  report  v^dthin  30  days  after  the  end  of  each 
month,  under  oath,  aU  instances  where  employees  subject  to  said  Act 
have  been  on  duty  for  a  longer  period  than  that  provided  in  said  Act . 

It  is  further  ordered,  That  the  accompanying  forms  entitled  "Inter- 
state Commerce  Commission  Hours  of  Service  Report,"  and  the 
method  embodied  in  the  instructions  therein  set  forth,  be,  and  the 
same  are  hereby,  adopted  and  prescribed;  and  all  common  carriers 
subject  to  said  Act  are  hereby  notified  to  use  and  follow  the  said  pre- 
scribed fonns  and  method  in  making  monthly  reports  of  hours  of 
service  of  employees  on  duty  for  a  longer  period  than  that  named  in 
said  Act,  commencing  with  and  making  the  first  report  for  the  month 
of  July,  1911. — Order  of  the  Commission  of  June  28,  1911. 

It  is  ordered,  That  the  accompanying  forms  entitled  "Interstate 
Commerce  Commission  Hours  of  Service  Report,"  and  designated  as — 
Form  No.  1. — Oith  and  summary  for  use  when  there  is  excess 
service;  Form  No.  8. — Oath  for  use  when  there  is  no  excess  service; 
Form  No.  2. — Employees  on  duty  more  than  16  consecutive  hours; 
Form  No.  3. — Employees  returned  to  duty  after  16  hours  continuous 
service,  without  10  consecutive  hours  of  duty;  Form  No.  4. — Em- 
ployees returned  to  duty,  after  aggregate  service  of  16  hours,  without 
8  consecutive  hours  off  duty;   Form  No.  6. — Employees  continued  on 


174  HOURS  OF  SERVICE  ACT. 


duty  after  aggregate  service  of  16  hours;  Form  No.  6. — Employees 
at  continuously  operated  day-and-night  oflaiees,  who  dispatch,  report, 
transmit,  receive,  or  deliver  orders  affecting  train  movements,  and 
who  were  on  duty  more  than  9  hours  in  any  24-hour  period;  Form 
No.  7. — Employees  at  offices  operated  only  during  the  daytime,  or 
not  to  exceed  13  hours  in  a  24-hour  period,  who  dispatch,  report, 
transmit,  receive,  or  deliver  orders  affecting  train  movements,  and 
who  are  on  duty  for  a  longer  period  than  13  hours  in  any  24-hour 
period;  and  the  method  embodied  in  the  instructions  therein  set  forth, 
be,  and  the  same  are  hereby,  adopted  and  prescribed;  and  all  common 
carriers  subject  to  said  Act  are  hereby  notified  to  use  and  follow  the 
said  prescribed  forms  and  method  in  making  monthly  reports  of 
hours  of  service  of  employees  on  duty  for  a  longer  period  than  that 
named  in  said  Act,  commencing  with  and  making  the  first  report  for 
the  month  of  July,  1012. — Order  of  the  Commission  of  April  8,  1912. 

Baltimore  cfc  0.  R.  Co.  v.  /.  C.  C,  221  U.  S.,  612. 
Supreme  Court,  May  29,  1911. 

Finding  that  the  objections  to  the  validity  of  the  statute  are 
not  well  taken,  we  are  brought  to  the  question  whether  the  Inters 
state  Commerce  Commission  has  authority  to  require  the  reports 
called  for  by  its  order. 

Section  4  of  the  Act  provides:  ^'It  shall  be  the  duty  of  the 
Interstate  Commerce  Commission  to  execute  and  enforce  the 

Provisions  of  this  Act,  and  all  powers  granted  to  the  Interstate 
ommerce  Commission  are  hereby  extended  to  it  in  the  execu- 
tion of  this  Act." 

The  Commission  then  may  call  to  its  aid  in  the  enforcement 
of  the  Act  "all  powers  granted"  to  it.  And,  although  there 
might  have  been  doubt  as  to  the  adequacy  of  the  authority  of 
the  Commission,  under  the  law  as  it  formerly  stood,  to  require 
these  reports,  there  can  be  none  now  in  view  of  the  amendment 
of  section  20  of  the  Act  to  regulate  commerce  by  the  Act  of 
June  18,  1910,  chap.  309  [36  Stat.,  556].  As  so  amended,  this 
section  contains  the  following  proAdsion:  '^The  Commission  shall 
also  have  authority  by  general- or  special  orders  to  require  said 
carriers,  or  any  of  them,  to  file  monthly  reports  of  earnings  and 
expenses,  and  to  file  periodical  or  special,  or  both  periodical  and 
special,  reports  concerning  any  matters  about  which  the  Com- 
mission is  authorized  or  required  by  this  or  any  other  law  to 
inquire  or  keep  itself  informed  or  wluch  it  is  required  to  enforce ; 
and  such  periodical  or  special  reports  shall  be  under  oath  when- 
ever the  Commission  so  requires;  *     *     *  '» 

This  clearly  embraces  the  power  which  the  Commission 
here  asserts,  and  it  is  certainly  now  entitled  to  promulgate  an 
order  requiring  reports  to  be  made.  It  follows  that  as,  under 
the  stipulation  of  record  here,  the  requirement  of  the  Commis- 
sion is  to  operate  whoUy  in  the  future  and  it  has  been  suspended 
awaiting  the  final  determination  of  this  cause,  the  question  of 
the  authority  of  the  Commission  at  the  time  the  order  was  made 
has  become  a  moot  one.  Were  there  no  other  question  before 
us  the  appeal  would  accordingly  be  dismissed,  and  to  justify  a 


HOURS  OF  SERVICE  REPORTS.  175 


reversal  of  the  judgment  and  the  sustaining  of  the  complainant^s 
bill  other  grounds  must  appear. 

Nor  can  it  be  said,  so  far  as  the  scope  of  the  requirement  of 
the  order  is  concerned,  that  it  goes  beyond  the  authority  which 
has  been  conferred  upon  the  Commission.  The  order  relates  to 
the  employees  who  are  ''subject  to  said  Act."  The  bill  alleges 
that,  in  the  original  forms  prescribed,  the  carrier  was  required 
to  show  the  employees  who  were  "either  on  duty  for  a  period  of 
time  in  excess  of  that  contemplated  by  the  Act  or  who  had  not 
been  off  duty  after  any  period  of  service  for  the  length  of  time 
prescribed  by  the  Act,  and  in  the  case  of  every  such  employee 
the  carrier  was  required  to  state  the  cause  of  and  the  facts,  if  any, 
explanatory  of  the  excess  service  thus  rendered  by  the  employee." 
By  the  amended  instructions  set  forth  in  the  stipulation,  it 
appears  that  ''in  case  no  employee  has  been  employed  in  excess 
01  the  time  named  in  said  Act,  and  in  case  no  employee  has  gone 
on  duty  with  less  than  the  statutory  period  off  duty,"  a  separate 
form  of  oath  to  that  effect  will  be  accepted  in  Heu  of  the  forms 
which  are  to  be  used  in  detailing  excess  service.  And,  as  akeady 
noted,  the  reports  are  to  be  made  by  the  secretary  or  similar 
officer. 

To  enable  the  Commission  properly  to  perform  its  duty  to 
enforce  the  law,  it  is  necessary  that  it  should  have  full  informa- 
tion as  to  the  hours  of  service  exacted  of  the  employees  who  are 
subject  to  the  provisions  of  the  statute,  and  the  requirements  ta 
which  we  have  referred  are  appropriate  for  that  purpose  and  are 
comprehended  within  the  power  of  the  Commission. — Hughes, 
Justice,  pp.  620-622. 

TJ.  S.  V.  Yazoo  c&  M.  V.  R.  Co.,  203  Fed.,  159.     See  also  U,  S.  v, 
Chicago,  M.  &  P.  S,  By.  Co.,  195  Fed.,  783. 

But  see: 

Northern  Pacific  Ry.  Co.  v.  U.  S.,  213  Fed.,  162. 

Circuit  Court  of  Appeals,  8th  Circuit,  March  21,  1914. 

Reason  and  authority  aUke  teach  that  the  act  of  omitting 
from  a  periodical  report  filed  in  good  faith  an  instance  or  item 
which  should  have  teen  included  therein,  or  a  mistake  in  the 
information  which  the  report  contains,  is  not  the  offense  of  fail- 
ing to  Gie  any  such  periodical  report.  [  U.  S.  v.  Four  Hundred 
Twenty  Dollars,  162  Fed.,  803;  BonneU  v.  GriswoU,  80  N.  Y., 
128;  Pier  v.  Hanmore,  86  N.  Y.,  95;  Matthews  v.  Patterson,  26 
Pac,  812;   Whitney  Arms  Co.  v.  Barlow,^  63  N.  Y.,  62.] 

^  And  the  conclusion  is  that  an  omission  by  a  carrier  from  the 
periodical  report  of  the  instances  of  excessive  service  of  its  em- 
ployees made  and  filed  in  good  faith  within  the  time  prescribed 
therefor  by  the  Interstate  Commerce  Commission,  under  the 
amendment  of  section  20  of  the  Act  to  regulate  commerce  [36 
'  Stat,  at  L.,  556],  of  one  or  more  instances  that  should  have  been 
included  therein,  or  any  mistake  of  law  or  fact  therein  made  in 
good  faith,  does  not  subject  the  carrier  to  liability  for  the  pen- 
alties or  forfeitures  denounced  by  that  amendment  for  the 
failure  to  file  a  periodical  report. — Sanhom,  C.  J.,  p.  168. 


176  HOURS  or  SERVICE  ACT. 


(a).  And  a  carrier  is  not  excused  from  the  necessity  of  filing  such 
reports  by  the  failure  of  the  Commission  to  have  included  with  its 
Order  of  June  28,  1911,  as  served  upon  such  carrier,  the  forms 
therein  described. 

TJ.  S.  V.  Oregoiv-  W.  R.  <&  N.  Co.  [unreported]. 

District  Court,  Eastern  District  oi  Washington,  April  20,  1914. 
The  sole  defense  interposed  was  that  a  copy  of  the  forms 
was  not  served  upon  the  company  together  with  the  order  as 
required  by  law  and  the  order  of  the  Commission.  This  defense 
is  highly  technical  and  in  my  opinion  should  not  prevail.  The 
notices  and  processes  referred  to  in  the  act  creating  the  Com- 
merce Court  are  notices  and  processes  of  a  jurisdictional  nature 
in  suits  or  proceedings  inter  partes  pending  before  the  Commis- 
sion or  the  Commerce  Court,  and  the  provision  as  to  service 
of  such  notices  and  processes  has  no  application  to  general 
administrative  orders  affecting  all  caiTiers  such  as  the  one  now 
under  consideration.  The  requirement  of  service  of  this  order 
rests  entirely  on  the  terms  of  the  order  itself  and  the  service  was 
intended  for  no  other  purpose  than  to  impart  notice  to  the 
carriers  affected  by  it.  The  order  as  served  referred  to  the  forms 
to  be  used,  the  carrier  actually  received  the  forms  and  made 
reports  on  them  for  the  veiy  months  during  which  the  delin- 
quencies complained  of  occurred,  but  the  name  and  excessive 
hours  of  service  of  the  employee  in  question  were  omitted  there- 
from by  inadvertence  or  mistake.  The  company  had  therefore 
full  notice  of  the  order  and  its  requirements  and  full  opportunity 
to  comply  with  its  provisions,  and  the  most  formal  service  could 
accomplish  nothing  beyond  this. — RudJcin,  D.  J. 

It  is  not  within  the  province  of  a  court  to  impose  upon  a  carrier 
for  its  violation  of  the  commission's  order  requiring  reports, 
a  smaller  penalty  than  that  prescribed  by  section  20  of  the  Act 
to  regulate  commerce — $100  per  day  for  each  and  every  day  such 
carrier  shall  have  continued  in  default. 

TJ,  S.  V.  Yazoo  cfc  M.  V.  R.  Co,,  203  Fed.,  159. 

District  Court,  Western  District  of  Tennessee,  Feb.  22,  1913. 
The  defendant  admits  the  allegations  in  the  petition  and 
thereby  says  that  it  is  technically  guilty  of  disobeying  the  order 
of  the  Interstate  Commerce  Commission;  but  it  insists  that  it 
should  not  be  subjected  to  a  penalty  of  $100  for  each  day  it  so 
failed  to  report  to  the  commission  the  particular  infractions 
charged  after  the  report  was  due  because  of  the  situation  existing 
at  the  time  of  the  failure  to  report. 

At  the  hearing  it  was  conceded  in  open  court  that  the  viola- 
tions of  the  16-hour  Act,  set  out  in  the  petition  of  the  Govern- 
ment, occurred  at  a  time  when  the  defendant  company  was  oper- 
ating its  railroad  in  and  out  of  Memphis  under  the  most  unfavor- 
able circumstances,  growing  out  of  a  strike  by  its  employees  in 
its  yards.  A  detailed  statement  of  the  conditions  existmg  at  that 
time  is  not  necessary,  but  it  is  sufficient  to  say  that  they  were 
of  such  character  that  the  court  should  take  them  into  con- 
sideration in  fixing  the  penalties  in  this  case,  if  authority  for  so 
doing  can  be  found  under  the  law. 


HOURS  or  SERVICE  REPORTS.  177 


The  only  question  presented  for  decision,  therefore,  is 
whether  it  is  discretionary  with  the  court  to  impose  a  less  or  a 
different  penalty  than  is  prescribed  by  the  twentieth  section  of 
the  Act  to  regulate  commerce,  approved  June  18,  1910.  [36 
Stat,  at  L.,  556.]  *  *  *  It  is  urged  that  there  is  a  difference 
between  the  mandatory  provision  that  a  carrier  shall  forfeit 
$100  per  day  for  failing  to  file  its  annual  report  and  the  provision 
in  resi)ect  to  its  failure  to  file  special  reports,  which  provides 
that  "it  shall  be  subject  to  the  forfeitures  last  above  provided," 
and  argues  that  had  Congress  intended  that  the  same  mandatory 
penalty  should  accrue  as  to  special  reports  as  accrue  in  reference 
to  annual  reports  the  same  language  would  have  been  employed. 

The  exact  difference  in  the  language  employed  by  Congress  is 
that  in  the  one  instance,  to  wit,  the  failure  to  file  the  annual 
report,  the  Act  provides  that  ^'such  party  shall  forfeit  to  the 
United  States  the  simoi  of  one  hundred  dollars  for  each  and  every 
day  it  shall  continue  to  be  in  default  in  respect  thereto,"  and  in 
the  other  instance,  to  wit,  the  failure  to  file  the  special  report,  it 
provides:  ''and  if  such  carrier  shall  fail  to  make  and  file  any 
such  periodical  or  special  report  within  the  time  fixed  by  the 
commission  it  shall  be  subject  to  the  forfeitures  last  above  pro- 
vided," which  forfeiture  last  above  provided  is  the  penalty  of 
$100  per  day.     *    *     * 

I  am  of  the  opinion  that  the  statute  is  mandatory  in  respect 
to  the  penalty  for  failure  to  comply  with  the  order  of  the  com- 
mission in  question,  and  that  the  court  has  no  discretion  in  the 
premises. — McCall,  D.  J.,  pp.  160,  161,  162. 
See  also  U.  S.  v.  Chicago,  M.  db  P.  S.  By.  Co.,  195  Fed.,  783. 

Tlie  Orders  of  the  Commission  requiring  reports  of  excess  service 
are  not  in  contravention  of  the  Fourth  and  Fifth  Amendments  to 
the  Constitution  of  the  United  States. 
See  Item  B-1-(c),  p.  Ill,  ante. 
50611—15 12 


v^ 


Part  III.  INTERSTATE  COMMERCE. 

"INTERSTATE  COMMERCE"  DEFINED. 


Jnterstate  commerce  consists  essentially  of  commercial  intercourse  between  the 

*  States,  179; 

(a)  Traffic  hauled  from  one  point  in  a  State  to  another  point  in  the  same 
State,  passing  en  route  through  a  portion  of  another  State,  is  interstate  com- 
merce, 180. 

2.  The  interstate  character  of  a  shipment  attaches  when  it  begins  to  move  as  an 

article  of  interstate  commerce,  and  continues  until  its  ultimate  destination 
is  reached,  180; 

(a)  And  the  temporary  stoppage  of  a  car,  even  for  repair,  does  not  withdraw 
it  from  the  uses  of  interstate  commerce,  181. 

(b)  Employees  on  work  trains,  engaged  in  picking  up  logs  along  the  right  of 
way  for  interstate  shipment,  are  engaged  in  interstate  commerce,  182; 

3.  A  car  moved  for  the  purpose  of  being  laden  with  an  interstate  shipment  is 

used  in  interstate  commerce,  182 ; 
(a)  And  in  the  absence  of  evidence  to  the  contrary,  the  fact  that  a  car  was  sub- 
sequently hauled  by  a  carrier  to  an  interstate  destination  is  properly  to  be 
considered  by  the  jury  in  determining  its  intended  destination  at  the  time 
it  was  moved  for  lading,  183. 

4.  The  weighing  of  cars  to  determine  the  weight  of  their  interstate  contents  is 
interstate  commerce,  183. 

6.  The  transportation  by  a  railroad  company  of  interstate  shipments  for  an  inde- 
pendent express  company  is  interstate  commerce,  183. 

6.  The  transportation  by  an  interstate  carrier  of  its  own  products  or  property  is 
interstate  commerce,  184. 

7.  Merely  rebilling  a  shipment  does  not  affect  its  interstate  character,  184; 

(a)  But  a  diverting  order  changes,  ab  initio,  the  destination  of  a  shipment,  184. 

8.  The  relation  between  interstate  and  intrastate  commerce  is  so  intimate,  and 
their  functions  so  commingled,  that  conditions  injuriously  affecting  the  latter 
jeopardize  the  former,  185. 

B.  FEDERAL   CONTROL   OF  INTERSTATE   COMMERCE. 

1.  The  power  to  regulate  commerce  is  general,  186. 

2.  All  commerce  is  subject  either  to  federal  or  to  state  control,  186. 

3.  Federal  power  over  interstate  commerce  is  as  complete  on  land  as  on  the 
navigable  waters  of  the  nation,  187. 

X       4i  The  power  of  Congress  over  interstate  commerce  is  supreme  and  paramount  to 
^  the  authority  of  all  the  States,  187. 

6.  One  system  of  regulation  of  interstate  commerce  is  alone  appropriate,  187; 

(a)  And  a  state  statute  which  attempts  to  regulate  interstate  commerce  or  con- 
flicts with  a  valid  federal  regulation  of  such  commerce  is  void,  187; 

(i)  Even  pending  the  effective  date  of  such  federal  statute,  188; 
(n)  And  even  though  the  limitations  of  the  state  enactment  are  less  stringent 
than  those  permitted  by  the  federal  statute,  189; 

(b)  But  a  state  statute  which  merely  regulates  the  instrumentalities  of  com- 
merce without  encroaching  upon  the  prerogatives  of  the  Federal  Government 
is  valid  as  an  exercise  of  the  police  power  of  the  State,  189; 

178 


V 


FEDERAL  CONTROL— DEFINITIONS.  179 


(i)  And  the  safety  appliance  act  of  a  State  is  not  invalid  as  being  repugnant 
to  tlie  federal  Acts  if  tlie  provisions  of  the  former  are  consistent  with  the 
latter  with  respect  to  the  appliances  prescribed,  189. 

6.  In  the  regulation  of  interstate  commerce  Congress  may  incidentally  regulate      V 
intrastate  or  local  commerce,  190. 

7.  The  regulation  of  interstate  commerce  comprehends  the  power  to  regulate  its 
agencies  and  instrumentalities,  190; 
(a)  And  the  rails  and  roadway  of,  as  well  as  the  cars  used  on,  interstate  railroads 

are  instrumentalities  of  interstate  commerce,  190. 

8.  The  obstruction  of  interstate  commerce  is  unlawful,  191. 

A.  "INTERSTATE  COMMERCE"  DEFINED. 

1.  "Interstate    Commerce"  consists  essentially  of  commercial  inter- 
course between  the  States: 
WahasTi  R.  Co.  v.  V.  S.;  Elgin,  J.  <&  E,  By.  Co.  v.  TJ,  S.,  168  Fed.,  1. 
Circuit  Court  of  Appeals,  7th  Circuit,  February  3,  1909. 

Interstate  commerce,  iii  its  broadest  sense,  is  commercial 
intercourse  between  the  States;  the  obverse  of  which  would  seem 
to  be  that  commercial  intercourse  that  is  wholly  within  the  State  is 
not  interstate  commerce. — Grosscwp,  C.  J,  [concurring],  p.  8. 
TJ.  S.  Y.  Chicago  Great  Western  Ry.  Co.,  162  Fed.,  775. 

District  Court,  Northern  District  of  Iowa,  May  6,  1908. 

By  ''interstate  traffic"  is  meant,  as  you  all  know,  traffic  that 
is  moved  from  one  State  or  Territory  into  or  through  some  other 
State  or  Territory. — Reed,  D.  J.,  p.  781. 
U.  S.  V.  Wahash  R.  Co.  [unreported]. 

District  Court,  Eastern  District  of  Illinois,  November  19,  1907. 
Interstate  commerce,  as  you  understand,  of  course,  is  traffic 
between  one  State  and  another  State — shipments  from  one  State 
to  another  State.     That  is  interstate  traffic. —  Wright,  D.  J. 
U.  S.  V.  Baltimore  <&  0.  R.  Co.  [imreported]. 

District  (  ourt,  Southern  District  of  Ohio,  June  10,  1909. 
The  defendant  is  engaged  in  interstate  commerce,  which 
means  commerce  between  different  States  of  the  Union. — Sater. 

TJ.  S.  V.  Southern  Pacific  Co.  [unreported]. 

District  Court,  District  of  Nevada,  November  24,  1909. 

Interstate  traffic  is  traffic  originating  in  one  State  and  des- 
tined and  consigned  to  some  point  in  another  State. — Farringtony 
D.J. 

TJ.  8.  V.  Central  of  Georgia  Ry.  Co.,  157  Fed.,  893;  TJ.  S.  v.  Colorado 
&  N.  W.  R.  Co.,  157  Fed.,  321.     See  also: 

Northern  Pacific  Ry.  Co.  v.  State  of  Washington,  222  U.  S.,  370. 
Supreme  Court,  January  9,  1912. 
The  train,  although  moving  from  one  point  to  another  in 
the  State  of  Washington,  was  hauling  merchandise  from  points 
outside  of  the  State  destined  to  points  within  the  State  and 
from  points  within  the  State  to  points  in  British  Columbia,  as 
well  as  in  carrying  merchandise  which  had  originated  outside 
of  the  State  and  was  in  transit  through  the  State  to  a  foreign 
destination.     This  transportation  was  interstate  commerce,  and 


180  INTEESTATE  COMMERCE. 


the  train  was  an  interstate  train,  despite  the  fact  that  it  may 
also  have  been  carrying  some  local  freight.  In  view  of  the 
imity  and  indivisibility  of  the  service  of  the  trabi  crew  and 
the  paramount  character  of  the  authority  of  Congress  to  regu- 
late commerce,  the  Act  of  Congress  was  exclusivel}'  controlluig 
[Southern  By.  Co.  v.  U.  S,,  222  U.  S.,  20].— White,  Chief  Justice, 
pp.  375-376. 

(a).  Traffic  hauled  from  one  point  in  a  State  to  another  point  in  the 
same  State,  passing  en  route  through  a  portion  of  another  State, 
is  interstate  commerce. 
U.  S.  V.  EHe  R.  Co.,  16G  Fed.,  ?>b2. 

District  Court,  District  of  New  Jersey,  January  12,  1909. 
If  merchandise  be  consigned  from  one  point  m  a  State  to 
another  point  in  the  same  State,  but  is  in  transit  carried  through 
a  portion  of  another  State,  the  transaction  constitutes  inter- 
state commerce  [Hanley  v,  Kansas  City  Southern  Ry.  Co.,  187 
U.  S.,  Q17].—Lanning,  D.  J.,  p.  355. 
U,  8,  V.  Chicago  Great  Western  Ry.  Co.,  162  Fed.,  775. 

2.iThe  interstate  character  of  a  shipment  attaches  when  it  begins 
to  move  as  an  article  of  interstate  commerce,  and  continues  until 
its  ultimate  destination  is  reached: 
U.  S,  V.  Geddes,  131  Fed.,  452. 

Circuit  Court  of  Appeals,  6th  Circuit,  June  8,  1904. 

In  the  cases  oi  The  Daniel  Ball,  10  Wall.,  557,  565,  and 
Coe  V.  Errol,  116  U.  S.,  517,  528,  it  was  held  that  ''whenever  a 
commodity  has  begun  to  move  as  an  article  of  trade  from  one 
State  to  another,  commerce  in  that  commodity  between  the 
States  has  commenced." — Richards,  C.  J.,  pp.  453-454. 
St.  Louis  db  S.  F.  R.  Co.  v.  Delk,  158  Fed.,  931. 

Circuit  Court  of  Appeals,  6th  Circuit,  March  3,  1908. 

The  question  which  seems  first  in  order  is  oiie  raised  by  the 
plaintiff  in  error,  and  is  whether  the  car  to  which  the  defective 
coupling  was  attached  was  at  the  time  of  the  accident  employed 
in  interstate  commerce.  The  plaintiff  in  error  claims  that  it  was 
not,  and  was  laid  by  for  repairs.  But  we  are  incUned  to  think 
otherwise.  Its  cargo  had  not  yet  reached  its  destination,  and 
was  not  then  ready  for  the  deUvery  to  the  consignee  wherewith 
the  commerce  would  have  ended.  Its  stoppage  in  the  yard  was 
an  incident  to  the  transportation.  The  injury  to  the  coupler 
was  one  easily  repaired  without  being  taken  to  a  repair  shop,  and 
the  car  was  being  hauled  upon  the  track  when  the  accident 
occurred. — Severens,  C.  J.,  p.  933. 
Belt  Ry.  Co.  oi  Chicago  v.  U.  S.,  168  Fed.,  542. 

circuit  Court  of  Appeals,  7th  Circuit,  February  3,  1909. 
''I  charge  you  that  when  a  commodity  originating  at  a 
point  in  one  State  and  destined  to  a  point  in  another  State  is 
put  aboard  a  car,  and  that  car  begins  to  move,  interstate  com- 
merce has  begun,  and  that  interstate  commerce  it  continues  to 
be  until  it  reaches  its  destination"  [Charge  of  lower  court  sus- 
tained],— Baker,  C.  «/.,  p.  543. 


DEPINITIONS.  181 


Chicago,  M.  cfc  SL  P.  Ry.  Co.  v.  VoelJcer,  129  Fed.,  522. 

Circuit  Court  of  Appeals,  8th  Circuit,  March  26,  1904. 

Whether  that  [the  ultimate  destination]  was  near  by  or 
remote  is  not  material,  because  the  shipment  had  originated  in 
another  State  and  was  already  impressed  with  the  character  of 
interstate  traffic,  which  would  follow  it  at  least  until  the  actual 
transit  ceased. —  Van  Devanter,  C.  J.,  p.  528. 
U.  S.  V.  Colorado  cfc  N.  W.  R.  Co.,  157  Fed.,  321. 

Circuit  Court  of  Appeals,  8th  Circuit,  November  25,  1907. 
Every  part  of  every  transportation  of  articles  of  commerce 
in  a  continuous  passage  from  an  inception  in  one  State  to  a  pre- 
scribed destination  in  another  is  a  transaction  of  interstate  com- 
merce. Goods  so  carried  never  cease  to  be  articles  of  interstate 
commerce  from  the  time  thfey  are  started  upon  their  passage  in 
one  State  until  their  delivery  at  their  destination  in  the  other  is 
completed  and  the}^  there  mingle  with  and  become  a  part  of  the 
great  mass  of  propert}'  within  the  latter  State. — Sanoom,  C.  J., 
p.  323. 
Pacific  Coast  Ry.  Co.  v.  ^.-^S'.,  173  Fed.,  448. 

Circuit  Court  of  Appeals,  9th  Circuit,  October  4,  1909. 

It  [the  decision  of  the  court  below]  rests  upon  the  fact  that 
the  movement  of  the  consigned  goods  to  their  ultimate  destina- 
tioQ  from  the  point  at  which  they  were  shipped  in  another  State 
was  in  part  condm  ted  upon  the  road  of  the  plaintiff  in  error, 
and  that  the  interstate  character  of  the  shipment  did  not  end 
until  the  transportation  had  reached  its  ultimate  completion. 
[Sustained]. — Gilbert,  C.  J.,  p.  452. 
U.  S.  V.  Central  of  Georgia  Ry.  Co.,  157  Fed.,  893. 

District  Court,  Northern  District  of  Alabama,  Sept.  27,  1907. 
It  has  been  proven  in  this  case,  and  there  is  no  conflict  in  the 
evidence,  that  both  of  the  cars  in  question  were  carrying  traffic 
consigned  from  a  point  in  one  State  to  a  point  in  another  State. 
This  makes  such  traffic  interstate  traffic.  While  the  evidence 
does  not  show  that  the  defendant  hauled  the  car  across  the  state 
line,  still  the  defendant  is  engaged  in  interstate  traffic,  no  matter 
how  short  the  movement,  if  the  traffic  hauled  is  in  course  of 
movement  from  a  point  in  one  State  to  a  point  in  another. — 
Hundley,  D.  «/.,  p.  894. 
V.  S.  V.  Western  cfc  A.  R.  Co.,  184  Fed.,  336;  U,  8.  v.  Chicago, 
M.  cfe  P.  S.  Ry.  Co.,  197  Fed.,  624;  Felt  v.  Denver  <&  R.  G.  R. 
Co.,  110  Pac,  215;  TJ.  S.  v.  Belt  Ry.  Co.  of  Chicago,  D.  C,  N.  D. 
Illinois,  Jan.  23,  1908,  Landis,  D.  J.  [unreported];  U.  S.  v.  South- 
em  Ry.  Co.  and  U.  S.  v.  Atlantic  Coast  Line  R.  Co.,  D.  C,  D. 
South  Carolina,  Feb.  24,  1909,  Brawley,  D.  J.  [unreported].  See 
also  North  Carolina  R.  Go.  v.  Zachary',  232  U.  S.,  248. 

(a).  And  the  temporary  stoppage  of  a  car,  even  for  repair,  does 

not  withdraw  it  from  tlie  nses  of  interstate  commerce : 
Erie  R.  Co.  v.  Russell,  183  Fed.,  722. 

Circuit  Court  of  Appeals,  2nd  Circuit,  December  2,  1910. 
It  is  pointed  out  that  the  car  was  not  being  hauled  at  the 
time  of  the  accident,  but  was  standing  upon  a  switch  track  for 


182  INTERSTATE  COMMERCE. 


the  insertion  of  the  knuckle  in  the  coupling  apparatus,  and  it  is 
contended  that  it  was  not  then  being  used  within  the  contem- 
plation of  the  statute. 

We  think  upon  the  authority  of  Johnson  v.  Southern  Pacific 
Co.,  196  U.  S.,  1,  that  this  contention  is  not  well  founded.  Tlie 
car  with  the  defective  coupler  was  not  withdrawn  from  use. 
Although  billed  to  the  repair  shop,  it  was  not  sent  there,  nor 
was  it  sent  to  any  place  used  especially  for  making  repairs.  The 
insertion  of  the  knuckle  was  a  simple  matter.  The  car  was 
stopped  only  temporarily,  and  it  was  intended  to  couple  it  to 
the  other  cars  as  soon  as  repaired.  These  facts  seem  clearly 
to  distinguish  this  case  from  those  cases  cited  in  the  defendant's 
brief,  where  accidents  occurred  when  cars  had  been  sent  to 
repair  shops  or  placed  upon  dead  tracks  used  for  repair  pur- 
poses.— Noyes,  U.  J.,  pp.  724-725. 
But  see  Siegel  v.  New  Yorh  Central  &  11.  R.  R.  Co.,  178  Fed.,  873 . 

—(b).  Employees  on  work  trains,  engaged  in  picking  up  logs  along 
the  right  of  way  for  interstate  shipment,  are  engaged  in  inter- 
state commerce. 
Z7.  S.  V.  Chicago,  M.  &  P.  S.  Ry.  Co.,  197  Fed.,  624. 

District  Court,  Eastern  District  of  Washington,  April  10,  1912. 

The  train  in  question  was  what  is  commonly  kno^\Ti  as  an 
extra  or  work  tram  operating  between  the  stations  of  East  on 
and  Keechelus,  in  Kittitas  County.  The  train  crew  was  engaged 
in  picking  up  logs  along  the  right  of  way,  loading  them  onto 
the  cars  and  hauling  the  loaded  cars  to  Whittier  station,  in 
Edttitas  County,  where  they  were  taken  up  by  one  of  the  defend- 
ant's regular  trains  and  transported  to  St.  Joe,  in  the  State  of 
Idaho.    *    *    * 

Within  this  rule  [that  a  commodity  is  impressed  with  the 
character  of  interstate  traffic  as  soon  as  it  begins  to  move  as  an 
article  of  trade  from  one  State  to  another]  employees  of  a  rail- 
way company  engaged  in  hauling  freight  from  some  interme- 
diate point  on  the  railway  line  to  another  point  where  it  is 
taken  up  by  the  regular  trains  for  interstate  shipment  are 
employed  in  interstate  commerce,  and  the  railway  company 
itself  is  engaged  in  interstate  commerce. — RudJcin,  D.  /.,  pp. 
626,  627. 
See  also  Johnston  v.  Chicago  Great  Western  Ry  Co.,  164  S.  W.,  260. 

8«  A  car  moved  for  the  purpose  of  being  laden  with  an  interstate 
shipment  is  used  in  interstate  commerce : 
Chicago  dh  N.  W.  Ry.  Co.  v.  U.  S.,  168  Fed.,  236. 

Circuit  Court  of  Appeals,  8th  Circuit,  March  10,  1909. 

Reading  these  statutes  together,  as  they  have  been  inter- 
preted by  the  courts,  they  include,  first,  vehicles  actually  mov- 
mg   interstate   traffic;  second,    such   vehicles,    though   empty. 


DEFINITIONS.  183 


when  moving  to  points  for  the  purpose  of  receiving  interstate 
traffic,  or  otherwise  commercially  used  by  the  carrier;  and,  third, 
vehicles  used  in  connection  with  vehicles  embraced  in  either  of 
the  two  former  classes. — Amidon,  I).  J.,  p.  237. , 
Bresky  v.  Minneapolis  db  St.  L.  By.  Co,,  132  N.  W.,  337. 
Supreme  Court  of  Minnesota,  August  11,  1911. 

There  is  an  important  distinction  between  merchandise 
which  may  be  the  subject  of  interstate  commerce  and  the  car 
in  which  such  merchandise  is  moved.  The  merchandise  is  not 
an  article  of  interstate  commerce  before  transportation  begins, 
but  the  car  or  engine  is  within  the  Safety  Appliance  Act  if  used 
as  an  instrunaent  in  moving  interstate  commerce,  and  such  use 
begins  when  it  is  moved  for  the  purpose  of  receiving  merchan- 
dise to  be  shipped  out  of  the  State. — Bunn,  J.,  p.  339. 

— (a) .  And  in  the  absence  of  evidence  to  the  contrary,  the  fact  that  a 
car  was  subsequently  hauled  by  a  carrier  to  an  interstate  desti- 
nation is  properly  to  be  considered  by  the  jury  in  determining 
its  intended  destination  at  the  time  it  was  moved  for  lading : 
Bresky  v.  Minneapolis  <&  St.  L.  Ry.  Co.,  132  N.  W.,  337. 
Supreme  Court  of  Minnesota,  August  11,  1911. 

Defendant  offered  no  testimony  to  show  that  it  was  not  its 
intention,  when  it  ordered  the  car  moved,  to  ship  the  scrap  iron 
out  of  the  State.  In  view  of  this  failure  to  attempt  to  prove 
that  it  had  no  such  intention,  a  fact  which  was  much  easier  for 
defendant  to  prove  than  for  plaintiff  to  show  the  contrary,  we 
think  the  evidence  of  the  subsequent  shipment  to  Minneapolis 
of  the  scrap  iron  loaded  in  this  car  was  sufficient  to  make  the 
question  one  for  the  jury.  If  it  was  not  defendant's  purpose  to 
snip  the  scrap  iron,  why  was  it  loaded  in  cars  ?  If  it  was  not  its 
intention  to  ship  to  Minneapolis,  where  did  it  intend  to  ship  it, 
and  why  was  the  plan  changed  ?  Scrap  iron  in  carload  lots  is  too 
valuable  to  throw  away.  It  is  a  fair  inference,  in  the  absence 
of  evidence,  that  it  was  necessary,  in  order  to  obtain  its  value, 
to  get  it  to  the  markets  or  mills  in  one  of  the  larger  cities  East. — 
Bunn,  J.,  p.  339. 

4.  The  weighing  of  cars  to  determine  the  weight  of  their  interstate 

contents  is  interstate  commerce. 
Wheeling  Terminal  Ry.  Co.  v.  RusseU,  209  Fed.,  795. 

Circuit  Court  of  Appeals,  4th  Circuit,  December  8,  1913. 
The  cars  were  being  weighed  to  determine  the  net  we^ht 
of  the  interstate  load  carried  by  them  to  the  West  Virginia 
consignee.  Those  who  were  engaged  in  ascertaining  such 
weights  were  themselves  employed  in  that  commerce.  [St. 
Louis  &  S.  F.  Ry,  Co.  v.  Seale,  229  U.  S.,  156].— -Rose,  D.  /., 
pp.  798-799. 

5.  The  transportation  by  a  railroad  company  of  interstate  shipments 

for  an  independent  express  company  is  interstate  commerce. 
U.  8.  V.  Colorado  cfc  N.  W.  R.  Co.,  157  Fed.,  342. 

Circuit  Court  of  Appeals,  8th  Circuit,  November  25,  1907. 
But  although  the  express  company  was  not  one  of  the  com- 
mon carriers  engaged  in  interstate  commerce  to  which  the  origi- 


184  INTERSTATE  COMMERCE, 


nal  Interstate  Commerce  Act  applied  [  V,  S.  v.  Morsman  42  Fed., 
448;  Southern  Indiana  Exp.  Co.  v.  U.  S.  Exp.  Co.,  88  Fed., 
659],  the  box  of  liquor  it  caused  to  be  transported  from  Mis- 
souri to  Colorado  was  an  article  of  interstate  commerce,  its  car- 
riage was  a  transaction  of  that  commerce,  and  the  express  com- 
pany's participation  in  its  transportation  was  engaging  in  inter- 
state commerce.  [Crutcher  v.  Kentuclcij,  141  U.  S.,  47,  57,  58,  59; 
Osborne  v.  Florida,  164  U.  S.,  650,  655;  Caldwell  v.  North  Carolina, 
187  U.  S.,  622,  629].  Moreover,  the  Interstate  Commerce  Act  had 
been  so  amended  that  express  companies  were  subject  to  its 
provisions  before  the  transportation  here  in  issue  was  conducted. 
*  *  *  The  transportation  by  a  common  carrier  by  railroad 
of  articles  of  mterstate  commerce  for  an  independant  express 
companv  is  engaging  in  interstate  commerce  by  railroad  as 
effectually  as  their  carriage  by  it  for  the  vendors  or  consignors. — 
Sanhom,  C.  J.,  pp.  343-344. 

6.  The  transportation  by  an  interstate  carrier  of  its  own  products  or 

property  is  interstate  commerce. 

U.  S.  v.  CUcago,  M.  cfc  St.  P.  Ry.  Co.,  M9  Fed.,  486. 

District  Court,  Southern  District  of  Iowa,  November  27,  1906. 
Another  defense  pleaded  is  that,  as  the  company  was  haul- 
ing its  own  rails,  and  would  receive  no  compensation,  it  was  not 
engaged  in  commerce  or  traffic.  That  is  to  sav,  that  construc- 
tion trains  with  cars  both  hauled  and  used,  both  locally  and 
across  state  lines,  and  cars  hauled  and  used,  as  just  stated,  for 
hauling  its  own  products,  can  stiU  be  equipped  with  links  and 
pins  and  fastened  with  chains,  and  can  be  carried  back  and 
forth  over  thousands  of  miles  of  roads.  Counsel  will  not  expect 
me  to  discuss  that. —  McPherson,  D.  J.,  pp.  490-491. 

TJ,  S.  V.  Southern  Ry.  Co.  [unreported]. 

District  Court,  District  of  South  Carolina,  February  24,  1909. 
It  (the  com-t)  will  instruct  you  that  if  the  car  referred  to, 
containing  sand,  was  being  moved  from  South  Carolina  into 
North  Carolina  for  the  company's  own  purposes,  if  it  was  car- 
ried in  a  train  which  was  engaged  in  interstate  commerce,  and 
this  car  was  defective,  it  falls  within  the  denunciation  of  the 
statute  still. — Brawley,  D.  J. 

Johnston  V.  Chicago  Great  Western  Ry.  Co.,  164  S.  W.,  260.  See 
also  TJ.  S.  V.  CUcago  c&  N.  W.  Ry.  Co.,  157  Fed,,  616;  Barlcer  v. 
Kansas  City,  M.  cfc  0.  Ry.  Co.,  129  Pac,  1151. 

7.  Merely  rebilling  a  shipment  does  not  affect  its  interstate  character : 
V,  S.  V.  Colorado  cfe  N.  W.  R.  Co.,  157  Fed.,  321. 

Circuit  Court  of  Appeals,  8th  Circuit,  November  25,  1907. 
The  rebilling  practiced  by  the  railroad  companies  without 
any  new  consents  or  contracts  with  the  owners  could  not  destroy 
or  affect  the  interstate  character  of  the  shipments  or  of  the  trans- 
portation.— Sanborn,  C.  J.,  p.  324. 

— (a).  But  a  diverting  order  changes,  ab  initio,  the  destination  of  a 
shipment. 
U.  S.  V.  Pacific  Coast  Ry.  Co.,  173  Fed.,  453. 

District  Court,  Southern  District  of  California,  June  13,  1908. 
After  that  order  had  been  sent  to  the  agent  at  San  Jose  it 


DEFINITIONS.  185 


was  as  though  the  original  contract  had  read  that  Careaga,  or 
whatever  was  the  point  to  which  it  was  to  be  diverted,  was  the 
ultimate  destination.  In  other  words^  the  original  contract  was 
so  changed  as  to  substitute  Carea^a,  or  the  other  points  on  the 
defendant's  local  line,  for  the  points  on  the  Southern  Pacific 
given  in  the  wavbill  as  it  was  originally  executed. —  Wellborn, 
D.  J.,  p.  455. 

The  relation   between  interstate  and   intrastate  commerce  is  so 
intimate,  and  their  functions  so  commingled,  that  conditions  inju- 
riously affecting  the  latter  may  jeopardize  the  former. 
Southern  By.  Co.  v.  V.  S.,  222  U.  S.,  20. 

Supreme  Court,  October  30,  1911. 

Speaking  only  of  railroads  which  are  highways  of  both  inter- 
state and  intrastate  commerce,  these  things  are  oi  common  know- 
ledge: Both  classes  of  traffic  are  at  times  carried  in  the  same  car, 
and  when  this  is  not  the  case  the  cars  in  which  they  are  carried 
are  frequently  commingled  in  the  same  train  and  in  the  switching 
and  other  movements  at  terminals.  Cars  are  seldom  set  apart 
for  exclusive  use  in  moving  either  class  of  traffic,  but  generally 
are  used  interchangeably  in  moving  both;  and  the  situation  is 
much  the  same  with  trainmen,  switchmen,  and  like  employees, 
for  they  usually,  if  not  necessarily,  have  to  do  with  both  classes 
of  traffic.  Besides,  the  several  trains  on  the  same  railroad  are 
not  independent  in  point  of  movement  and  safety,  but  are  inter- 
dependent, for  whatever  brings  delay  or  disaster  to  one,  or  results 
in  disabling  one  of  its  operatives,  is  calculated  to  impede  the  prog- 
ress and  imperil  the  safety  of  other  trains.  And  so  the  absence 
of  appropriate  safety  appliances  from  any  part  of  any  train  is  a 
menace  not  only  to  that  train  but  to  others. —  Van  Bevanter,  Jus- 
tice, p.  27. 
Wabash  R.  Co.  v.  U.  S.;  Elgin,  J.  db  E.  By,  Co.  v.  U.  S.,  168  Fed.,  1. 

Circuit  Court  of  Appeals,  7th  Circuit,  February  3,  1909. 

Now,  if  the  same  interstate  carrier  may  haul  on  the  same 
interstate  highway  cars  that  need  not  be  equipped  because, 
though  regularly  used  in  interstate  traffic,  they  are  empty  at  the 
time  [the  Wahash  Case]  and  also  cars  that  need  not  be  equpped 
because  they  are  laden  with  intrastate  traffic  exclusively  [the  Elgin 
Case],  the  purpose  of  equpping  the  cars  that  are  carrying  inter- 
state traffic  would  manifestly  be  largely  impaired  or  destroyed; 
for  in  switching  movements,  in  derailments,  and  in  collisions 
disaster  would  come  to  the  interstate  car  quite  irrespective  of  the 
character  of  the  other  cars  involved. — Baker,  C.  J,,  p.  5. 
U.  S.  V.  Great  NoHhem  By.  (?o.,145  Fed.,  438. 

District  Court,  Eastern  District  of  Washington,  June  11,  1906. 
Cars  containing  state  traffic  could  be  commingled  with  those 
containing  interstate  traffic,  and  thus  defeat  the  purposes  of  the 
legislation  upon  the  subject.  The  effect  of  this  would  be  to 
endanger  the  train  engaged  in  interstate  traffic.  Again  a  carrier 
could  use  trains  engaged  entirely  in  state  traffic  upon  its  lines, 
without  the  requisite  ecjuipmentj  which  might  result  in  injury  to 
passengers  by  commg  in  collision  with  a  train  engaged  in  inter- 
state traffic. —  Whitson,  D.  J.,  p.  439. 


186  INTERSTATE  COMMERCE. 


State  V.  OUcago,  M.  &  St.  P.  Ry.  Co.,  117  N.  W.,  686. 
Suprome  Court  of  Wisconsin,  September  29,  1908. 

The  direction  and  dispatching  of  every  train  on  jin  inter- 
state railway  necessarily  involves  knowledge  in  the  train  dis- 
paxher  of  all  other  trains  which  are  in  the  same  vicinity  at  the 
same  time,  and  also  ability  to  control  such  other  trains.  An 
interstate  train  from  Milwaukee  to  Chicago  can  not  be  safely 
forwarded  if,  imder  the  direction  of  a  separate  employee,  a  local 
train  may  be  moving  between  Milwaukee  and  Racine  over  the 
same  track  at  the  same  time,  or  nearly  so.  The  very  switching 
at  local  stations  must  be  within  the  knowledge  and  under  the 
control  of  him  who  is  to  decide  upon  and  direct  the  most  impor- 
tant of  interstate  transportation.  Obviously  division  of  author- 
ity over  these  subjects  would  be  fraught  with  great  perils  and 
delays  to  both  kinds  of  transportation.  Hardly  any  act  of  a 
train  dispatcher  on  a  busy  railroad  can  be  conceived  which  does 
not  affect  both  interstate  and  domestic  commerce.  He  can  not 
move  or  stop  the  most  distinctively  local  train  without  affecting 
the  interstate  train,  or  vice  versa.  No  extra  or  special  can  be 
put  on  the  division  without  adjustment  of  other  trains.  Of 
coin-se,  also,  every  interstate  train  carries  some  purely  intra- 
state freight  or  passengers.  Many  purely  domestic  trains  carry 
some  freight  or  passengers  in  transit  to  extrastate  destination. 
It  would  seem  tliat  any  severance  of  control  over  state  from 
interstate  trains  involved  so  much  of  confusion  and  probability 
of  danger,  and  its  possibility  even  is  so  doubtful  and  experi- 
mental, that  no  legislature  would  absolutely  precipitate  it  with- 
out careful  consideration  nor  without  providing  in  the  act  for 
the  event  of  the  failure  of  such  experiments. — Dodge,  J.,  pp.  690- 
691. 

B.  FEDERAL  CONTROL  OF  INTERSTATE  COMMERCE. 

1.  The  power  to  regulate  cominerce  is  general. 

U.  S.  V.  Colorado  &  N.  W.  R.  Co.,  157  Fed.,  321. 

Circuit  Court  of  Appeals,  8th  Circuit,  November  25,  1907. 
The  power  to  regulate  commerce  among  the  States  is  general, 
and  includes  authority  to  regulate  aU  its  parts,  (1)  the  subjects 
of  commerce,  the  articles,  information,  intelligence  transported 
from  State  to  State;  (2)  the  transactors  of  commerce,  the  mer- 
chants, carriers,  laborers  who  carry  it  on;  (3)  the  means,  the 
vehicles,  the  cars,  steamboats,  coaches,  wagons  by  which  subjects 
of  commerce  are  carried;  (4)  the  operation,  the  contracts,  terms, 
rates  under  which  it  is  conducted. — Sanborn,  C.  J.,  p.  325. 

2.  All  commerce  is  subject  either  to  federal  or  to  state  control. 
TJ,  S.  V.  Chicago,  M.  &  St.  P.  Ry.  Co.,  149  Fed.,  486. 

District  Court,  Southern  District  of  Iowa,  November  27,  1906. 
In  so  far  as  commerce  can  be  regulated  or  controlled,  it  falls 
within  the  power  of  a  State  or  of  Congress.  To  say  that  it  falls 
within  the  power  of  neither  is  to  argue  an  absurdity,  and  to  say 
that  up  in  the  air  somewhere  is  a  subject  matter  not  grappled 
with  by  either  the  State  or  Nation.  I  do  not  for  one  moment 
believe  in  that  kind  of  talk. — McPherson,  D,  J.,  p.  488. 


FEDERAL  CONTROL.  187 


3.  Federal  power  over  interstate  commerce  is  as  complete  on  land 

as  on  the  navigable  waters  of  the  nation. 

TJ.  S.  V.  Colorado  cfc  N.  W.  R.  Co.,  157  Fed.,  321. 

Circuit  Court  of  Appeals,  8th  Circuit,  November  25,  1907. 
The  power  to  regulate  interstate  commerce  is  as  complete 
upon  the  land  as  upon  the  navigable  waters  of  the  nation,  and 
congressional  regulation  upon  the  former  must  be  interpreted  by 
the  same  rules  and  enforced  with  the  same  efficiency  as  like  regu- 
lations upon  the  latter.  *  *  *  Congress  has  the  same  '^ full- 
ness of  controP'  over  interstate  commerce  carried  upon  railroads 
and  other  artificial  highways  upon  the  land  that  it  has  over  that 
borne  upon  the  navigable  waters  of  the  nation  [In  re  Debs,  158 
U.  S.,  564-591].— 5'a7i6om,  C,  J.,  pp.  326,  331-332. 

4.  The  power  of  Congress  over  interstate  commerce  is  supreme  and 

paramount  to  the  authority  of  all  the  States. 

Wabasli  R.  Co.  v.  V.  S.;  Elgin,  J.  (&  E.  Ry.  Co.  v.  U.  S.,  168  Fed.,  1. 
Circuit  Court  of  Appeals,  7th  Circuit,  February  3,  1909. 

Therefore,  Congress,  under  the  power  *Ho  make  all  laws 
which  shall  be  necessary  and  proper  for  carrying  into  execution 
the  foregoing  powers"  of  regulating  interstate  commerce,  had 
the  right  to  make  the  laws  in  question:  and  they  are  paramount, 
of  course,  to  all  laws  of  the  States. — Baker,  C.  J.,  p.  5. 

V.  S.  V.  Colorado  cfc  N.  W.  R.  Co.,  157  Fed.,  321. 

Circuit  Court  of  Appeals,  8th  Circuit,  November  25,  1907. 
The  people  of  the  United  States  carved  out  of  their  sover- 
eign power,  reserved  from  the  States,  and  granted  to  the  Con- 
gress of  the  United  States  exclusive  and  plenary  power  to  regu- 
late commerce  among  the  States  and  with  foreign  nations.  That 
power  is  not  subordinate,  but  is  paramount  to  all  the  powers  of 
the  States.  If  its  independent  and  lawful  exercise  of  this  con- 
gressional power  and  the  attempted  exercise  by  a  State  of  any  of 
its  powers  impinge  or  conflict,  the  former  must  prevail  and  the 
latter  must  give  way.  The  Constitution  and  the  acts  of  Con- 
gress passed  in  pursuance  thereof  are  the  supreme  law  of  the 
Isind.San'born,  C.  J.,  pp.  330-331. 

Erie  R.  Co.  v.  New  York,  233  U.  S.,  671;  Southern  Ry.  Co  v.  Rail- 
road Com.  of  Ind.,  100  N.  E.,  337  [and  cases  there  cited]. 

6.  One  system  of  regulation  of  interstate  commerce  is  alone  appro- 
priate : 
U,  8.  V.  Southern  Ry.  Co.,  164  Fed.,  347. 

District  Court,  Northern  District  of  Alabama,  Sept.  25,  1908. 
Uniformity  of  regulation  affecting  all  the  States  is  not  only 
permissible  but  is  required.  There  must  be  only  one  system  of 
rules  applicable  alike  to  the  whole  country,  which  Congress  alone 
can  prescribe  [Mobile  v.  Kimball,  102  U.  S.,  691]. — Hundley, 
D.  J.,  p.  357. 

— (a).  And  a  state  statute  which  attempts  to  regulate  interstate  com- 
merce or  conflicts  with  a  valid  federal  regulation  of  such  com- 
merce is  void. 

Northern  Pacific  Ry.  Co.  v.  State,  222  U.  S.,  370;  Erie  R.  Co.  v. 
New  York  233  U.  S.,  671;  Detroit,  T.  c&  I.  Ry.  Co.  v.  State,  91 


188  INTERSTATE  COMMERCE. 


N.  E.,  869;  State  v.  Missouri  Pacific  Ry.  Co.,  Ill  S.  W.,  500; 
State  V.  Texas  &  N.  0.  R.  Co.,  124  S.  W.,  984;  State  v.  Walash 
R.  Co.,  141  S.  W.,  646;  StateY.  Northern  Pacific  Ry.  6'o.,93Pac., 
945;  State  v.  Chicago,  M.  <&  St.  P.  Ry.  Co.,  117  N.  W.,  686. 

— (i).  Even  pending  the  effective  date  of  such  federal  statute; 

Northern  Pacific  Ry.  Co.  v.  State  of  Washington,  222  U.  S.,  370. 
Supreme  Court,  January  9,  1912. 

!But  we  are  of  opinion  that  this  view  is  not  compatible  with 
the  paramount  authority  of  (^ongress  over  interstate  commerce. 
It  is  elementary,  and  such  is  the  doctrine  announced  by  the  cases 
to  which  the  court  below  referred,  that  [the  right  of  a  State  to 
apply  its  police  power  for  the  purpose  of  regulating  interstate 
'\/  conmerce,  in  a  case  like  this,  exists  only  from  the  silence  of  Con- 
gress on  the  subject,  and  ceases  when  Congress  acts  on  the  sub- 
ject or  manifests  its  purpose  to  call  into  play  its  exclusive 
powerj  This  being  the  conceded  premise  upon  which  alone  the 
state  "Taw  could  have  been  made  applicable,  it  results  that  as 
the  enactment  by  Congress  of  the  law  in  question  was  an  asser- 
tion of  its  power,  by  the  fact  alone  of  such  manifestation  that 
subject  was  at  once  removed  from  the  sphere  of  the  operation  of 
the  authority  of  the  State.  To  admit  the  fundaPiiental  principle 
and_  yet  to  reason  that  because  Congress  chose  to  make  its  pro- 
hibitions take  effect  only  after  a  year,  the  matter  with  which 
Congress  dealt  remained  subject  to  state  power,  is  to  cause  the 
Act  of  Congress  to  destroy  itself;  that  is,  to  give  effect  to  the 
will  of  Congress  as  embodied  in  the  postponing  provision  for 
the  purpose  of  overriding  and  rendering  ineffective  the  expres- 
sion of  the  will  of  Congress  to  bring  the  subject  mthin  its  con- 
trol— a  manifestation  arising  from  the  mere  fact  of  the  enact- 
ment of  the  statute. 

We  do  not  pause  to  cite  authorities  additional  to  those 
referred  to  by  the  court  below,  but  we  observe  in  passing  that 
the  aspect  in  which  we  view  the  question  was  cogently  stated 
by  the  Supreme  Court  of  the  State  of  Missouri  in  State  v.  Missouri 
Pacific  Ry.  Co.,  212  Mo.,  658,  and  has  also  been  lucidly  ex- 
pounded by  the  Supreme  Court  of  the  State  of  Wisconsin  in 
State  V.  Chicago,  M.  &  St.  P.  Ry.  Co.,  136  Wis.,  407. 

But  if  we  pass  these  considerations  and  consider  the  issue 
before  us  as  one  requiring  merely  an  interpretation  of  the  statute, 
we  are  of  opinion  that  it  becomes  manifest  that  it  would  cause 
the  statute  to  destroy  itself  to  give  to  the  clause  postponing  its 
operation  for  one  year  the  meaning  which  must  be  affixed  to  it 
in  order  to  hold  that  during  the  year  of  postponement  state 

Eolice  laws  applied.  In  the  first  place,  no  conceivable  reason 
as  been,  or  we  think  can  be,  suggested  for  the  postponing  pro- 
vision if  it  was  contemplated  that  the  prohibitions  oi  state  laws 
should  apply  in  the  meantime.  Tliis  is  true  because  if  it  be  that 
it  was  contemplated  that  the  subject  dealt  with  should  be  con- 
trolled during  the  year  by  state  laws,  the  postponement  of  the 
prohibitions  of  the  act  could  accomplish  no  possible  purpose. 
This  is  well  illustrated  by  this  case,  where,  by  the  ruling  below, 


FEDERAL  CONTROL.  189 


a  state  regulation  substantialljr  similar  to  that  contained  in  the 
Act  of  Congress  is  made  applicable.  In  the  second  place,  the 
obvious  suggestion  is  that  the  purpose  of  Congress  in  giving 
time  was  to  enable  the  necessary  adjustments  to  be  made  by 
the  railroads  to  meet  the  new  conditions  created  b^  the  Act,  a 
purpose  which  would  of  course  be  frustrated  by  giving  to  the 
provision  as  to  postponement  a  significance  w^hich  would  destroy 
the  very  reason  which  caused  it  to  be  enacted. —  White,  Chief 
Justice,  pp.  378-379-380. 
Erie  R.  Co,  v.  New  York,  233  U.  S.,  671  [Reversing  the  judgment 
of  the  Court  of  Appeals  of  New  York  in  People  v.  Erie  R.  Co.j  91 
N.  E.  849];  State  v.  Missouri  Pacific  Ry.  Co.,  Ill  S.  W.,  500; 
State  V.  Texas  &  N.  0.  R.  Co.,  124  S.  W.,  984.  But  see  Lloyd  v. 
North  Carolina  R.  Co.,  66  S.  E.,  604;  State  v.  Northern  Pacific 
Ry.  Co.,  93  Pac,  945. 

-(ii).  And  even  thougli  the  limitations  of  the  state  enactment  are  less 
stringent  than  those  permitted  by  the  federal  statute : 

State  V.  Chicago,  M.  &  St.  P.  Ry.  Co.,  117  N.  W.,  686;  State  v. 
Northern  Pacific  Ry.  Co.,  93  Pac,  945;  State  v.  Missouri  Pacific 
Ry.  Co.,  Ill  S.  W.,  500;  State  v.  Texas  dc  N.  0.  R.Co.,  124  S.  W., 
984;  State  v.  Wabash  R.  Co.,  141  S.  W.,  646.  See  also  EHe  R. 
Co.,  V.  New  York,  233  U.  S.,  671.  [Reversingthe  judgment  of  the 
Court  of  Appeals  of  New  York  in  People  v.  Erie  S.  c/o.,  91  N.  E., 
849].     But  see  Lloyd  v.  North  Carolina  R.  Co.,  66  S.  E.,  604. 

-(b).  But  a  state  statute  which  merely  regulates  the  instrumentalities 
of  commerce  without  encroaching  upon  the  prerogatives  of  the 
Federal  Government  is  valid  as  an  exercise  of  the  police  power 
of  the  State: 

Detroit,  T.  cfc  /.  Ry.  Co.  v.  State  of  Ohio,  91  N.  E.,  869. 
Supreme  Court  of  Ohio,  March  15,  1910. 

The  regulation  of  commerce  among  the  States  is  within  the 
exclusive  jurisdiction  of  Congress,  but  it  is  well  settled  that  a 
state  statute,  enacted  in  the  exercise  of  its  police  power,  not 
regulating  or  directly  affecting  interstate  commerce  or  in  conflict 
with  federal  regulations,  but  merely  regulative  of  the  instrumen- 
talities of  commerce,  is  not  void;  and  when  such  state  regulations 
do  conflict  with  federal  regulations  they  are  not  void  on  the 
ground  that  the  State  has  exercised  a  power  exclusively  in  Con- 

fress,  but  because  the  Constitution  and  the  laws  of    the  United 
tates  made  in  pursuance  thereof  are  the  supreme  law  of  the 
land. — Summers,  Ch.  J.,  p.  871. 
Luken  v.  Lake  Shore  cfc  M.  S.  Ry.  Co.,  94  N.  E.,  175. 

-(i).  And  the  safety  appliance  act  of  a  State  is  not  invalid  as  being 
repugnant  to  the  federal  Acts  if  the  provisions  of  the  former  are 
consistent  with  the  latter  with  respect  to  the  appliances  prescribed. 

Southern  Ry.  Co.  v.  Railroad  Com.  of  Ind.,  100  N.  E.,  337;  Luken  v. 
Lake  Shore  &  M.  S.  Ry.  Co.,  94  N.  E.,  175.  See  also  PiUs- 
hurgh,  C,  C.  cfc  St.  L.  Ry.  Co.  v.  State,  87  N.  E.,  1034  [full-crew 
law  of  Indiana]. 


190  Iin:ERSTATE  COMMERCE. 


6.  In   the    regulation    of    interstate    commerce   Congress  may  inci- 

dentally regulate  intrastate  or  local  commerce. 
Southern  By.  Co.  v.  U.  S.,  222  U.  S.,  20. 
Supremo  Court,  October  30,  1911. 

Is  there  such  a  close  or  direct  relation  or  connection  between 
the  two  classes  of  traffic,  wlien  moving  over  the  same  railroad, 
as  to  make  it  certain  that  the  safety  of  the  interstate  traffic  and 
of  those  who  are  employed  in  its  movement  will  be  promoted  in  a 
real  or  substantial  sense  by  applying  the  requirements  of  these 
Acts  to  vehicles  used  in  moving  the  traffic  which  is  intrastate  as 
well  as  to  those  used  in  moving  that  which  is  interstate  ?  If  the 
answer  to  this  question,  as  doubly  stated,  be  in  the  affirmative, 
then  the  principal  question  must  be  answered  in  the  same  way. 
And  this  is  so,  not  because  Congress  possesses  any  power  to  regu- 
late intrastate  commerce  as  such,  but  because  its  power  to  regu- 
late interstate  commerce  is  plenary  and  competently  may  be 
exerted  to  secure  the  safety  of  the  persons  ana  property  trans- 
ported therein  and  of  those  who  are  employed  in  such  transpor- 
tation, no  matter  what  may  be  the  source  of  the  dangers  which 
threaten  it.  That  is  to  say,  it  is  no  objection  to  such  an  exer- 
tion of  this  power  that  the  dangers  intended  to  be  avoided  arise, 
in  whole  or  in  part,  out  of  matters  connected  with  intrastate 
commerce. —  Van  Devanter,  Justice,  pp.  26-27. 

7.  The  regulation  of  interstate  commerce  comprehends  the  power  to 

regulate  its  agencies  and  instrumentalities : 
TJ.  S.  V.  Great  Northern  Ry.  Co.,  145  Fed.,  438. 

District  Court,  Eastern  District  of  Washington,  June  1 1 ,  1906. 
To  sustain  the  demurrer  would  be  to  hold  that  it  is  beyond 
the  power  of  Congress  to  control  the  instrumentalities  through 
which  interstate  commerce  may  be  carried  on.  But  the  pre- 
rogative necessarily  carries  with  it  the  authority  to  prescribe  the 
rules  and  regulations  which  shall  apply  to  those  engaged  in  it. — 
Whitson,  D.  J.,  p.  439. 
U.  S.  V.  Southern  Ry.  Co.,  164  Fed.,  347. 

District  Court,  Northern  District  of  Alabama,  Sept.  25,  1908. 
From  what  has  been  said  above,  and  the  authorities  cited, 
it  is  plain,  therefore,  that  ICongress.  in  regulating  those  instru- 
mentahties  of  commerce,  to  wit,  '' trains,  locomotives,  tenders, 
cars,  and  similar  vehicles  used  on  any  railroad  engaged  in  inter- 
state commerce,"  was  acting  entirely  within  the  scope  of  its 
authority  conferred  by  the  Constitutioju\and  the  first  four 
grounds  of  the  demurrer  are,  therefore,  not  weU  taken. — Hund- 
ley,  D.  J.,  p.  354. 

— (a).  And  the  rails  and  roadway  of,  as  well  as  the  cars  used  on,  inter- 
state railroads  are  instrumentalities  of  interstate  commerce. 
V.  S.  V.  Southern  Ry.  Co.,  164  Fed.,  347. 

District  Court,  Northern  District  of  Alabama,  Sept.  25,  1908. 
The  engine  engaged  in  interstate  commerce  is  an  instru- 
mentaHty  of  that  commerce  and  may  be  regulated  by  Congress. 
The  cars  and  the  rails  upon  which  the  cars  are  run  are  all  instru- 
mentalities of  commerce.     The  highway  upon  which  the  cross- 


FEDERAL  CONTROL.  191 


ties  and  the  rails  rest,  when  this  highway  with  its  crossties  and 
rails  run  from  one  State  to  another,  is  an  instmmentaHty  of 
commerce  falling  within  the  purview  of  the  Constitution,  which 
confers  upon  Congress  the  right  to  regulate  interstate  com- 
merce.— Hundley,  D.  J.,  p.  354. 

U,  S,  V.  Wheeling  &  L.  E.  R.  Co,,  167  Fed.,  198. 

District  Court,  Northern  District  of  Ohio,  June  16,  1908. 
All  of  the  cars  used  by  a  railroad  engaged  in  interstate  com- 
merce, in  the  natural  course  of  their  use,  are  instrumentalities 
of  interstate  commerce;  whether  they  carry  interstate  traffic 
themselves  or  are  hauled  in  a  train  which  contains  interstate 
traffic  the  effect  is  the  same. — Tayler,  D.  J.,  p.  200. 

8.  The  obstruction  of  interstate  commerce  is  nnlawfuL 
U.  S.  V.  Southern  Ry.  Co.,  164  Fed.,  347. 

District  Court,  Northern  District  of  Alabama,  Sept.  25,  1908. 
It  was  decided  in  the  Dehs  Case,  158  U.  S.,  564,  that  the 
obstruction  of  such  [foreign  or  interstate]  commerce  was  unlaw- 
ful under  the  laws  of  the  United  States,\£Ould  be  suppressed  by  j/ 
the  armies  of  the  United  States,  and,  "at  the  instance  of  the 
United  States,  could  be  enjoined  in  its  courts- — Hundley,  D.  J.^ 
p.  353. 


Part  IV.  CONSTRUCTION  OF  STATUTES. 

GENEBAL    BITLES    OF    STATUTORY    CONSTRUCTION   AS    APPLIED 

IN  CASES  UNDER  THE   SAFETY  APPLIANCE  AND 

HOURS    OF   SERVICE  ACTS. 

1.  The  construction  of  a  statute  is  controlled  by  the  intention  of  the  legislative 
body  therein  expressed  or  necessarily  implied,  192 ; 

(a)  And  this  purpose  is  exhibited  in  its  title  and  enacting  clause,  193 ; 

(b)  But  a  secret  intention  of  the  legislative  body  should  not  be  construed  into 
a  statute,  193. 

3.  Judicial  interpretation  is  out  of  place  with  respect  to  statutes  which  are  un- 
ambiguous, 194. 

8.  Uncertainty  in  the  interpretation  of  statutes  may  sometimes  be  removed  by 
appropriate  punctuation,  194. 

4.  Courts   should  not  concern  themselves  with  the  harshness   of  particular 
legislation,  195; 

(a)  But  must  enforce  the  law  as  they  find  it,  195; 

(b)  And  if  the  burden  devolved  by  a  statute  upon  the  individuals  subject  to 
its  terms  is  too  severe,  the  remedy  lies  with  the  law-making  power  and  not 
with  the  courts,  196. 

6.  Courts  in  construing  statutes  may  consult  their  legislative  history,  196. 

6.  Statutes  modifying  the  common  law  should  be  strictly  construed,  197; 

(a)  But  all  statutes  are  to  be  sensibly  construed,  197; 

(b)  And  no  statute  should  be  frittered  away  by  judicial  construction,  197. 

7.  The  interpretation  placed  upon  a  statute  by  those  intrusted  with  its  execution 
is  entitled  to  the  most  respectful  consideration  of  the  courts,  198. 

1.  The  construction  of  a  statute  is  controlled  by  tlie  intention  of  the 
legislative  body  therein  expressed  or  necessarily  implied. 

Johnson  v.   Southern  Pacific    Co.,  196  U.  S.,  1. 
Supreme  Court,  December  19,  1904. 

Moreover,  it  is  settled  that  "though  penal  laws  are  to  be 
construed  strictly,  yet  the  intention  of  the  legislature  must 
govern  in  the  construction  of  penal  as  well  as  other  statutes; 
and  they  are  not  to  be  construed  so  strictly  as  to  defeat  the 
obvious  intention  of  the  legislature."  [U.  S.  v.  Lacher,  134 
U.  S.,  624.]— FuZZer,  Chief  Justice,  pp.  17-18. 

Southern  By.  Co.  v.  CrocTcett,  234  U.  S.,  725;  Johnson  v.  Southern 
Pacific  Co.,  117  Fed.,  462;  V.  S.  v.  Southern  By.  Co.,  135  Fed., 
122;  U.  S.  V.  Chicago,  B.  cfc  Q.  By.  Co.,  156  Fed.,  180;  TJ.  S. 
V.  Central  of  Georgia  By.  Co.,  157  Fed.,  893;  TJ.  S.  v.  Southern 
By.  Co.,  170  Fed.,  1014;  V.  S.  v.  Chicago,  B.  I.  &  P.  By.  Co., 
173  Fed.,  684;   TJ.  S.  v.  Minois  Central  B.  Co..  177  Fed.,  801; 

192 


GENERAL  RULES.  193 


TJ.  S.  V.  St.  Louis  S.  W.  By.  Co.  of  Texas,  184  Fed.,  28;  Southern 
By.  Co.  V.  Snyder,  187  Fed.,  492;  Gray  v.  Louisville  cfe  N,  B, 
Co.,  197  Fed.,  874;  TJ.  S.  v.  Pere  Marquette  B.  Co.,  211  Fed., 
220;  Lalce  Shore  cfc  M.  S.  By.  Co.  v.  Benson,  97  N.  E.,  417; 
La  Mere  v.  By.  Trans.  Co.  of  Minneapolis,  145  N.  W.,  1068; 
Missouri  Pacific  By.  Co.  v.  Brinkmeier,  93  Pac,  621;  LuJcen  v. 
Lalce  Shore  &  M.  S.  By.  Co.,  154  111.  App.,  550;  Snyder  v. 
Southern  By.  Co.,  C.  C..  E.  D.  Tennessee,  Jan.  21,  1910, 
Sanford,  D.  J.  [unreported].  See  also  TJ.  S.  v.  St.  Louis  S.  W 
By.  Co.  of  Texas,  189  Fed.,  95  i;  TJ.  S.  v.  Chicago,  M.  cfc  P.  S, 
By.  Co.,  197  Fed.,  624;  TJ.  S.  v.  Atlantic  Coast  Line  B.  Co.,  211 
Fed.,  897;  U.  S.  v.  Northern  Pacific  By.  Co.,  213  Fed.,  539; 
TJ.  S.  V.  Missouri  Pacific  By.  Co.,  D.  C,  W.  D.  Missouri,  May  8, 
1913,  Van  Valkenburgn,  D.  J.  [unreported]. 

(a).  And  this  purpose  is  exhibited  in  its  title  and  enacting  clause: 

Southern  By.  Co.  v.  CrocJcett,  234  TJ.  S.,  725. 
Supreme  Court,  June  22,  1914. 

In  each  of  these  cases  [Johnson  v.  Southern  Pacific  Co., 
196  U.  S.,  1;  Schlemmer  v.  Buffalo,  B.  cfe  P.  By.  Co.,  205  U.  S., 
1 ;  Southern  By.  Co.  v.  TJ.  S.,  222  U.  S.,  20;  and  Pennell  v.  Phil- 
adelphia cfc  B.  By.  Co.,  231  U.  S.,  675]  the  letter  of  the  Act 
was  construed  in  the  light  of  its  spirit  and  purpose,  as  indicated 
by  its  title  no  less  than  by  the  enacting  clauses.  The  same 
guiding  principle  should  be  adhered  to  in  considering  the  ques- 
tion now  presented. — Pitney,  Justice,  p.  735. 

See  also  TJ.  S.  v.  Chicago,  M.  <&  P.  S.  By.  Co.,  197  Fed.,  624; 
TJ.  S.  V.  Denver  db  B.  G.  B,  Co.,  197  Fed.,  629. 

-(b).  But  a  secret  intention  of   the  legislative  body  should  not  be 
construed  into  a  statute. 

Johnson  V.  Southern  Pacific  Co.,  117  Fed.,  462. 

Circuit  Court  of  Appeals,  8th  Circuit,  August  28,  1902. 

But  it  is  the  intention  expressed  in  the  law  or  contract,  and 
that  only,  that  the  courts  may  give  effect  to.  They  can  not 
lawfully  assume  or  presume  secret  purposes  that  are  not  indi- 
cated or  expressed  by  the  statute  itself  and  then  enact  provisions 
to  accomplish  these  supposed  intentions.  While  ambiguous 
terms  and  doubtful  expressions  may  be  interpreted  to  carry  out 
the  intention  of  a  legislative  body  which  a  statute  fairly  evi- 
dences, a  secret  intention  can  not  be  interpreted  into  a  statute 
which  is  plain  and  unambiguous,  and  which  does  not  express  it. 
The  legal  presumption  is  that  the  legislative  body  expressed 
its  intention,  that  it  intended  what  it  expressed,  and  that  it 
intended  nothing  more.  [TJ.  S.  v.  Wiltherger,  5  Wheat.,  76;  Ins. 
Co.  V.  Champlin,  116  Fed.,  858;  Cold  Blast  Trans.  Co.  v.  Kansas 
C.  B.  &  N.  Co.,  114  Fed.,  77,  81 ;  Bailway  Co.  v.  Bagley,  56  Pac, 
759;  Woolsey  v.  Byan,  54  Pac,  664;  Davie  v.  Mining  Co.,  53 
N.  W.,  625;  Vogel  v.  Pelcoc,  42  N.  E.,  386;  Campbell  v.  Lambert, 
51  Am.,  1;  TurnpiJce  Co.  v.  Coy,  13  Ohio  St.,  84;  Stensgaard  v. 
Smith,  44  N.  W.,  m^.]— Sanborn,  C.  J.,  p.  465. 
U.  S.  V.  Colorado  cfc  N.  W.  B.  Co.,  157  Fed.  321. 
50611—15 13 


194  CONSTRUCTION  OF  STATUTES. 


2.  Judicial   interpretation   is  out  of   place  with  respect  to  statutes 

which  are  unambiguous. 

Johnson  v.  Southern  Pacific  Co.,  117  Fed.,  462. 

Circuit  Court  of  Appeals,  8th  Circuit,  August  28,  1902. 

Construction  and  interpretation  have  no  place  or  office 
where  the  terms  of  a  statute  are  clear  and  certain  and  its  mean- 
ing is  plain.  In  such  a  case  they  serve  only  to  create  doubt 
and  to  confuse  the  judgment.  When  the  language  of  a  statute 
is  unambiguous,  and  its  meaning  evident,  it  must  be  held  to 
mean  what  it  plainly  expresses,  and  no  room  is  left  for  con- 
struction. [Swarts  V.  Siegel,  117  Fed.,  13;  Knox  Co.  v.  Morton, 
68  Fed.,  787,  789;  By.  Co.  v.  Sage,  71  Fed.,  40,  47;  U.  S.  v. 
Fisher,  2  Cr.,  358,  399;  Ry.  Co.  v.  Phelps,  137  U.  S.,  528,  536.]— 
Sanborn,  C.  J.,  p.  465. 

V.  8.  V.  Colorado  cfe  N.  W.  R.  Co.,  157  Fed.,  321. 

Circuit  Court  of  Appeals,  8th  Circuit,  November  25,  1907. 
But  construction  and  interpretation  have  no  place  or  func- 
tion where  the  terms  of  the  statute  are  clear  and  certain,  and  its 
meaning  is  plain.  In  Lalce  County  v.  Rollins,  130  U.  S.,  662-670, 
the  Supreme  Com-t,  after  discussing  the  apphcation  of  this  rule 
to  contracts  and  constitutions,  said:  "So  also  where  a  law  is 
expressed  in  plain  and  imambiguous  terms,  whether  those  terms 
are  general  or  limited,  the  legislature  should  be  intended  to 
mean  what  they  have  plainly  expressed,  and  consequently  no 
room  is  left  for  construction.''  [Z7.  S.  v.  Fisher,  2  Cr.,  358,  399: 
Doggett  v.  R.  Co.,  99  U.  S.,  72.]— Sanhorn,  C.  J.,  p.  324. 

U.  S.  V.  Baltimore  &  0.  R.  Co.,  184  Fed.,  94  [citing  Hamilton  v. 
RatUone,  175  U.  S.,  414];  U.  S.  v.  Chicago,  M.  &  P.  S.  Ry.  Co., 
195  Fed.,  783;  U.  S.  v.  Yazoo  &  M.  V.  R.  Co.,  203  Fed.,  159. 
See  also  Northern  Padiic  Ry.  Co.  v.  TJ.  S.,  213  Fed.,  162. 

3.  Uncertainty  in  the  interpretation  of  statutes  may  sometimes  be 

removed  by  appropriate  punctuation. 

Johnson  V.  Southern  Pacific  Co.,  196  U.  S.,  1. 
Supreme  Court,  December  19,  1904. 

We  dismiss  as  without  merit  the  suggestion  which  has  been 
made,  that  the  words  "without  the  necessity  of  men  going 
between  the  ends  of  the  cars,"  wliich  are  the  test  of  compliance 
with  section  2,  apply  only  to  the  act  of  uncoupling.  The  phrase 
literally  covers  both  coupling  and  imcoupling,  and  if  read,  as  it 
should  be,  with  the  comma  after  the  word  "uncoupled,"  this 
becomes  entii^ely  clear.  [Chicago,  M.  &  St.  P.  Ry.  Co.  v. 
VoeTker,  129  Fed.,  b22.]—FuUer,  Chief  Justice,  pp.  18-19. 

Chicago,  M.  cfc  St.  P.  Ry.  Co.  v.  Voellcer,  129  Fed.,  522. 
Circuit  Court  of  Appeals,  8th  Circuit,  March  26,  1904. 

If  there  be  uncertainty  in  the  congressional  Act,  it  is  obvi- 
ated by  merely  inserting  a  comma  after  the  word  "  uncoupled '^ 
in  that  portion  of  the  Act  which  calls  for  "couplers  coupling 
automatically  by  impact,  and  which  can  be  uncoupled  without 
the  necessity  of  men  going  between  the  ends  of  the  cars."  The 
concluding  phrase  then  hteraUy  applies  to  both  the  coupling 
and  uncoupling.     Punctuation  is  a  minor,  and  not  a  controlling, 


GENERAL  RULES.  195 


element  in  interpretation,  and  courts  will  disregard  the  punctua- 
tion of  a  statute,  or  repunctuate  it,  if  need  be,  to  give  effect  to 
what  otherwise  appears  to  be  its  purpose  and  true  meaning. 
[Hammock  v.  Loan  c&  Trust  Oo.,  105  U.  S.,  77,  84;  U.  S.  v. 
Lacker,  134  U.  S.,  624,  Q2S.]— Van  Devanter,  0.  J.,  pp.  526-527. 
U.  S.  V.  ErieR.  Co.,  166  Fed.,  352. 

District  Court,  District  of  New  Jersey,  January  12,  1909. 
The  word  "engaged"  does  not  relate  to  its  immediate  sub- 
stantive "railroad,"  but  to  the  preceding  substantives  "trains, 
locomotives,  tenders,  cars,  and  similar  vehicles."  If  a  comma 
be  inserted  after  the  word  "railroad"  (as  Chief  Justice  Fuller 
inserted  one  after  the  word  "uncoupled"  in  the  second  sectioD 
of  the  Act  of  March  2,  1893—566  196  U.  S.,  18),  the  meaning  is 
clear,  and  the  language  consistent  with  the  subsequent  parts  of 
the  section.  Such  construction  was  suggested  in  U.  S.  v.  CTii- 
cago  &  N.  W.  Ry.  Go.,  157  Fed.,  QlQ.—lanning,  D.  J.,  p.  355. 

4.  Courts  should  not  concern  themselves  with  the  harshness  of  par- 
ticular legislation: 
St  Louis,  L  M.  c&  S.  Ry.  Co.  v.  Taylor,  210  U.  S.,  281. 
Supreme  Court,  May  18,  1908. 

It  is  urged  that  this  is  a  harsh  construction.     To  this  we 
reply  that,  if  it  be  the  true  construction,  its  harshness  is  no  con- 
cern of  the  courts. — Moody,  Justice,  p.  295. 
U.  S.  V.  Baltimore  <&  0.  R.  Co.,  170  Fed.,  456. 

District  Court,  Western  District  of  Pennsylvania,  May  17, 1909. 
And  the  question  of  hardship  upon  the  railroad  company,  I 
say,  is  not  a  matter  to  be  considered  in  this  case  at  all,  because 
the  Act  of  Congress  has  specified  what  the  railroad  company  was 
to  do  in  order  to  change  the  conditions  that  previously  existed, 
and,  whether  it  is  hard  upon  a  railroad  company  or  not,  it  was 
within  the  province  of  Congress  to  so  enact,  and  until  Congress 
changes  the  law  we  must  hold  to  its  meaning. — Orr,  D.  J.,  pp. 
458-459. 
U.  S.  V.  NortJiern  Pacific  Ry.  Go,,  D.  C,  W.  D.  Washington,  Dec. 
6,  1913,  Cu-hman,  D.  J.  [unreported].  See  also  U.  S.  v.  Yazoo 
c&  M.  V.  R.  Co.,  203  Fed.,  159;  U.  S.  v.  Missouri  Pacific  Ry. 
Co.,  206  Fed.,  847:  State  v.  Missouri  Pacifi^c  Ry.  Co.,  Ill  S.  W., 
500. 

— (a).  But  must  enforce  the  law  as  they  find  it. 

Atlantic  Coast  Line  R.  Co.  y.U.  S.,  168  Fed.,  175. 

Circuit  Court  of  Appeals,  4th  Circuit,  March  1,  1909. 

The  courts  do  not  possess  the  power  to  read  an  exception 
into  a  statute  so  as  to  modify  or  change  the  nature  of  the  same 
and  thus  defeat  the  purposes  for  which  the  law  was  intended. — 
Pritclmrd,  C.  J.,  p.  185. 
V.  S.  V.  Colorado  <&   N.  W.  R.  Co.,  157  Fed.,  321. 

Circuit  Court  of  Appeals,  8th  Circuit,  November  25,  1907. 
But  where  the  Congress  makes  no  exception  from  the  clear 
and  certain  declaration  of  a  statute,  there  is  ordinarily  a  presump- 
tion that  it  intended  to  make  none.     [Citing  cases].     By  so  much 


196  CONSTETJCTION  OF  STATUTES. 


the  more  is  it  true  that  where  the  law-making  body  has  made  excep- 
tions to  the  2;eneral  terms  of  an  act,  as  in  this  instance,  the  pre- 
sumption is  that  it  intended  to  make  no  more.  Again,  if  Congress 
intended  to  make  this  exception  it  was  a  secret  intention  \vnich 
the  Safety  Apphance  Acts  not  only  failed  to  express  but  which 
their  terms  expressly  negatived.  It  is  the  intention  expressed,  or 
necessarily  impUed,  in  the  law,  and  that  alone,  to  which  courts 
may  lawfully  give  effect. — Sanborn,  G,  J.,  p.  332. 
U.  S.  V.  Southern  Ry.  Co.,  135  Fed.,  122. 

District  Court,  Southern  District  of  Illinois,  March  2,  1905. 
The  courts  can  not  by  judicial  legislation  read  into  the  Act 
any  language  which  will  excuse  offenders  any  more  than  they  can 
read  into  it  language  which  would  increase  tneir  hability.     Cfourts 
must  enforce  the  law  as  they  find  it. — Humphrey,  D.  J.,  p.  127. 
U.  S.  V.  Illinois  Central  R.  Co.,  156  Fed.,  182. 

District  Court,  Western  District  of  Kentucky,  Nov.  1,  1907. 
We  are  not,  however,  permitted  to  depart  from  the  words  of 
the  Act  of  Congress  or  to  read  exceptions  into  it  unless  upon 
estabhshed principles  of  interpretation  which  would  authorize  it. — 
Evans,  D.  J.,  p.  188. 

— (b).  And  if  the  burden  devolved  by  a  statute  upon  the  individuals 
subject  to  its  terms  is  too  severe,  the  remedy  lies  with  the  law- 
making power  and  not  with  the  courts. 
U,  S.  V.  Yazoo  cfc  M.  V.  R.  Co.,  203  Fed.,  159. 

District  Court,  Western  District  of  Tennessee,  Feb.  22,  1913. 
It  is  pressed  upon  the  court  that  the  statute  in  question  and 
the  rule  of  the  Commission  thereunder  are  harsh  and  bear  too 
heavily  upon  common  carriers. 

When  the  lan^age  of  a  statute  is  plain  and  unambiguous, 
its  harshness  should  not  be  ameliorated  by  construction  of  the 
courts.     Those  interested  must  apply  to  the  lawmaking  body 
enacting  such  statutes  for  rehef,  and  imtil  Confess  changes  the 
law  now  under  consideration  we  must  enforce  it  as  it  is  plainly 
written.— McCall,  D.  J.,  p.  162. 
U.  S.  V.  Missouri  Pacific  Ry.  Co.,  206  Fed.,  847. 
^.  Courts,  in  construing  statutes,  may  consult  their  legislative  history . 
Johnson  V.  Southern  Pacific  Co.,  196  U.  S.,  1. 
Supreme  Court,  December  19,  1904. 
That  this  was  the  scope  of  the  statute  is  confirmed  by  the 
circumstances  surrounding  its  enactment,  as  exhibited  in  pubUc 
documents  to  which  we  are  at  liberty  to  refer  [Binns  v.  U.  o.,  194 
U.  S.,  486,  495;  Holy  Trinity  Church  v.  U.  S.,  143  U.  S.,  457, 
iQS].— Fuller,  Chief  Justice,  p.  19. 
U.  S.  V.  Chicago,  M.  <&  St.  P.  Ry.  Co.,  149  Fed.,  486. 

District  Court,  Southern  District  of  Iowa,  November  27,  1906. 
A  statute,  Uke  a  contract,  must  be  held  up  by  the  four  cor- 
ners and  examined,  and  when  remedial  in  its  nature  it  must  be 
examined  in  the  light  of  its  history  and  its  purposes  and  the  then 
existing  evils  which  were  to  be  corrected,  remedied  and  pre- 
vented.—  McPherson,  D.  J.,  p.  487. 


GENERAL  EULES.  197 


V.  S.  V.  Chicago  &  N,  W.  By.  Co.,  157  Fed.,  616. 

District  Court,  District  of  Nebraska,  December  30,  1907. 
While  the  court  in  construing  the  law  may  not  inquire  what 
individual  Members  of  Congress  supposed  the  bill  to  mean,  it  may 
consult  the  history  of  the  Act  and  the  reports  of  the  committees 
having  it  in  charge     [Mosle  v.  Bidwell,  130  Fed,,  334.] — Munger^ 
D.  J.,  p.  618. 
State  V.  Chicago,  M.  cfc  St.  P.  Ry.  Co.,  117  N.  W.,  686. 
6.  Statutes  modifying  the  common  law  should  be  strictly  construed: 
Johnson  v.  Southern  Pacific  Co.,  117  Fed.,  462. 

Circuit  Court  of  Appeals,  8th  Circuit,  August  28,  1902. 
A  statute  which  thus  changes  the  common  law  must  be 
strictly  construed.  The  common  or  the  general  law  is  not  further 
abrogated  by  such  a  statute  than  the  clear  import  of  its  language 
necessarily  requires.  [Shaw  v.  R.  Co.,  101  U.  S.,  557;  Fitzgerald  v. 
Quann,  17  N.  E.  354;  Brown  v.  Barry,  3  Dall.,  365].— ^anftom, 
C.  J.,  p.  466. 

— (a).  But  all  statutes  are  to  be  sensibly  construed: 
Johnson  v.  Southern  Padjic  Co.,  196  U.  S.,  1. 
Supreme  Court,  December  19,  1904. 

And,  as  Chief  Justice  Parker  remarked,  conceding  that 
statutes  in  derogation  of  the  common  law  are  to  be  construed 
strictly,  ''they  are  also  to  be  construed  sensibly,  and  with  a  view 
to  the  object  aimed  at  by  the  legislature.''  [Gibson  v.  Jinney, 
15  Mass.,  205]. — Fuller,  Chief  Justice,  p.  17. 
U.  S.  V.  Illinois  Central  R.  Co.,  156  Fed.,  182  [citing  U.  S.  v.  Kirhyy 
7  WaU.,  486];  U.  S.  v.  Chicago,  R.  I.  cfc  P.  Ry.  Co.,  173  Fed.,  684; 
Siegel  v.  New  York  Central  dc  H.  R.  R.  Co.,  178  Fed.,  873;  North- 
ern Pacific  Ry.  Co.  v.  U.  S.,  213  Fed.,  162;  U.  S.  v.  Missouri 
Pacific  Ry.  Co.,  213  Fed.,  169. 

—  (b).  And  no  statute  should  be  frittered  away  by  judicial  construe* 
tion. 

R  S.  V.  CJiicago,  M.  <&  St  P.  Ry.  Co.,  149  Fed.,  486. 

District  Court,  Southern  District  of  Iowa,  November  27,  1906. 
It  is  an  elementary  rule  of  construction  that  the  statute 
can  not  be  broadened  by  construction  so  as  to  cover  acts  or 
omissions  not  clearly  within  the  spirit  and  language  of  the  statute. 
But  while  this  is  conceded,  another  rule  equally  important  and 
as  clearly  established  is  that  statutes  are  not  to  be  frittered  away 
by  courts  by  construction. — McPherson,  D.  J.,  p.  487. 
TJ,  S.  V.  Atlantic  Coast  Line  R.  Co.,  153  Fed.,  918. 

District  Court,  Eastern  District  of  North  Carolina,  May  21, 1907. 

Such   a  construction  must   be  given   the   statute  as  will 

accomplish  the  evident  intent  of  Congress.     The  statute  must 

not  be  frittered  away  by  judicial  construction. — PumeU,  D.  J., 

p.  924. 

Cray  v.  Louisville  <k  N,  R.  Co.,  197  Fed.,  874. 


198  CONSTRUCTION  OF  STATUTES. 


7.  Tlie  interpretation  placed  upon  a  statute  by  those  entrusted  with 
its  execution  is  entitled  to  the  most  respectful  consideration  of 
the  courts. 
U.  S.  V.  Atchison,  T.  &  S.  F.  Ry.  Co.,  212  Fed.,  1000. 
District  Court,  District  of  Arizona,  April  10,  1914. 

That  the  ''construction  of  a  statute  by  those  charged  with 
the  execution  of  it  is  always  entitled  to  the  most  respectful  con- 
sideration, and  ought  not  to  be  overruled  without  potent  rea 
sons,''  was  the  rule  announced  at  a  very  early  day  oy  the  Su- 
preme Court  of  the  United  States  and  reiterated  in  a  very  large 
number  of  cases.  [Heath  v.  Wallace,  138  U  S  ,  573.] — Saw- 
telle,  Z>.  J.,  p.  1005. 
Oshome's  AdmW,  v.  Cincinnati,  N.  0.  d;  T.  P.  Ry.  Co.,  164  S.  W., 
818.  See  also  TJ.  S.  v.  Trans- Missouri  Freight  Ass'n.y  166  U.  S., 
290;  PenneU  v.  Philadelphia  &  R.  Ry.  Co.,  231  U.  S.,  675. 


Part  V.  General  Rules  of  EVIDENCE,  PLEADING,  PRACTICE 

and  PROCEDURE  applied  in  cases  under  the  Safety 

Appliance  and  Hours  of  Service  Acts. 

A.  EVIDENCE. 

1.  The  burden  of  proof  is  on  the  Government  in  actions  for  the  penalties  pro- 
vided by  the  federal  Safety  Appliance  and  Hours  of  Service  Acts,  201 ; 

(a)  But  such  proceedings  being  civil  actions,  the  preponderance  of  evidence 
is  sufficient  to  establish  the  allegations  of  the  plaintiff's  declaration,  201; 

(b)  "Preponderance  of  evidence"  defined,  202. 

2.  Government  inspectors  of  safety  appliances  are  not  required  to  advise  the 
carriers  on  whose  lines  inspections  are  made  with  respect  to  their  discovery  ol 
particular  defects,  and  their  failure  so  to  do  is  not  to  be  considered  by  the  Jury 
as  discrediting  their  testimony  in  an  action  for  the  recovery  of  the  penalties 
provided  by  the  Acts,  203. 

3.  In  an  action  for  the  recovery  of  the  penalties  provided  by  the  federal  Safety 
Appliance  Acts,  no  witness  is  to  be  discredited  by  the  jury  merely  by  reason  of 
his  personal  interest  as  an  inspector  of  the  Government  or  as  an  employee  of  a 
defendant  carrier,  206. 

4.  Other  things  being  equal,  positive  testimony  is  to  be  accorded  greater  weight 
than  negative  testimony,  206; 

(a)  But  the  testimony  of  a  company  inspector  that  he  inspected  particular  cars 
in  the  furtherance  of  his  duty,  and  that  he  failed  to  find  particular  defects,  is 
positive  testimony  of  a  negative  fact,  207. 
6.  A  memorandum  made  by  a  government  inspector  from  original  waybills,  show- 
ing the  origins,  destinations,  consignors,  and  consignees  of  particular  ship- 
ments, may  be  read  to  the  jury  as  an  original  memorandum  made  at  the  time 
of  his  inspection,  and,  in  the  absence  of  evidence  to  the  contrary,  may  be 
inferred  to  have  been  correctly  made,  207. 

6.  Becords  kept  by  the  defendant  for  the  purpose  of  giving  necessary  information 
on  which  the  carrier  itself  would  rely,  although  not  proved,  as  would  be  neces- 
sary if  offered  by  the  defendant  for  self-serving  purposes,  are  admissible  when 
offered  by  the  plaintiff  as  in  the  nature  of  admissions,  208. 

7.  The  determination  of  what  is  and  what  is  not  a  handhold  within  the  purview 
of  the  federal  Safety  Appliance  Acts  is  within  the  province  of  the  jury,  208; 
(a)  The  competency  of  openings  in  the  buffers  on  the  ends  of  cars  as  substi- 
tutes for  handholds  is  not  a  proper  subject  for  expert  testimony,  where  such 
openings  are  subject  to  the  personal  inspection  of  the  jury,  209. 

8.  The  operation  of  automatic  couplers  is  a  proper  subject  for  expert  testimony,  209 ; 
(a)  The  exhibition  of  model  couplers  to  the  jury,  merely  for  the  purpose  of 

illustrating  particular  defects,  is  permissible,  210 ; 

B.  PLEADING,  PRACTICE,  AND  PROCEDURE. 

1.  The  purpose  of  a  proviso  ordinarily  is  to  restrain  or  modify  the  enacting  clause 
of  a  statute,  211. 

2.  In  actions  under  the  federal  Safety  Appliance  and  Hours  of  Service  Acts, 
the  Government  is  not  required  in  its  declarations  to  negative  the  provisos  in 
those  statutes,  211 ; 

(a)  But  the  defendant  carriers  in  such  actions  must  bring  themselves  strictly 
within  the  terms  of  such  provisos  in  order  to  avail  themselves  of  the  immuni- 
ties thereby  afforded,  212. 

199 


200  PLEADING,  PRACTICE,  AND  PROCEDURE. 


3.  If  an  action  under  the  federal  Hours  of  Service  Act  is  so  tried  by  court  and 
counsel  as  tacitly  to  imply  that  circumstances  not  specifically  set  out  in  the 
answer  are  embraced  within  the  issues,  they  will  be  treated  by  an  appellate 
court  as  though  they  had  been  set  out  in  the  answer,  213. 

4.  The  allegation  in  the  plaintiff's  declaration  that  a  violation  of  the  federal 
Safety  Appliance  Acts  occurred  "on  or  about "  a  certain  date  is  not  fatally  defec- 
tive for  want  of  deflniteness,  213. 

6.  In  a  penal  action  based  upon  the  defective  condition  of  a  coupler  the  allegation 
in  the  plaintiff's  declaration  that  the  car  in  question  was  "not  equipped  with 
couplers  coupling  automatically  by  impact,  etc.,"  is  a  conclusion  or  statement 
of  result,  and  not  a  substantive  charge,  214. 

6.  Actions  under  the  federal  Safety  Appliance  and  Hours  of  Service  Acts  being 
civil,  if  the  Government  in  any  case  establishes  by  uncontradicted  evidence 
the  facts  recited  in  the  declaration,  it  is  entitled  to  a  directed  verdict,  214; 

(a)  And  the  refusal  of  the  trial  judge,  in  a  proper  case,  to  direct  a  verdict  for 
the  Government  is  a  reversible  error,  216; 

(b)  But  a  directed  verdict  is  permissible  only  when  all  reasonable  men  would 
deduce  the  same  conclusions  from  the  facts  which  condition  the  issue,  216; 

(c)  Where  the  judgment  of  a  trial  court  is  reversed,  on  appeal,  for  error  in  denying 
a  motion  for  a  directed  verdict  at  the  close  of  the  evidence,  such  decision, 
even  though  not  unanimous,  is  the  law  of  the  case  on  retrial,  and  requires 
the  granting  of  a  similar  motion,  unless  the  evidence  is  such  as  to  change 
the  state  of  facts  to  which  the  law  in  the  previous  case  applied,  or  until 
the  decision  of  the  Circuit  Court  of  Appeals  is  reversed  by  the  Supreme 
Court,  216. 

7.  Where  a  party  submits  to  the  court  for  instruction  a  charge  defectively  prepared, 
it  is  the  duty  of  the  court  to  correct  the  defect  and  submit  the  issue,  and  failure 
so  to  do  may  be  assigned  as  error,  216; 

(a)  But  where  the  court  refuses  a  specific  prayer,  and  then  in  its  general  charge 
or  in  another  prayer  covers  the  point  in  question,  even  though  the  court  may 
have  erred  in  refusing  the  prayer,  such  error  is  not  prejudicial  and  is  there- 
fore harmless,  216. 

8.  A  petition  for  removal  will  be  sustained  if  the  pleadings  are  amended  so  as 
to  transform  a  nonremovable  cause  into  a  removable  one,  216. 

9.  The  amendment  of  a  petition  in  such  a  manner  as  to  bring  within  the  federal 
Safety  Appliance  Acts  a  case  not  otherwise  within  their  purview  is  not  merely 
a  restatement  or  a  statement  in  a  different  form  of  the  same  cause  of  action, 
but  is  the  averment  of  a  statutory  cause  of  action  in  which  the  liability  is  greater 
than  in  an  action  at  the  common  law,  217. 

10.  Where  the  trial  court  grants  a  compulsory  nonsuit  on  the  ground  of  insufficient 
evidence  to  sustain  a  verdict  on  any  count,  its  action  will  not  be  reversed  by 
an  appellate  court  if  the  record  is  in  such  condition  as  to  render  it  impossible 
to  determine  what  evidence  applies  to  each  specific  count,  217. 

11.  Court  of  Appeals  decisions  on  a  given  question  are  entitled  to  greater  weight 
than  decisions  of  a  District  Court,  217. 

12.  A  suit  for  specific  performance  of  a  contract  to  locate  and  maintain  a  railroad 
division  terminal  at  a  point  where  its  continuance  would  impose  a  burden 
upon  interstate  commerce  or  preclude  the  carrier's  observance  of  the  federal 
Hours  of  Service  Act  is  unsustainable  217. 

13.  In  a  joint  action  under  the  federal  Safety  Appliance  Acts,  judgment  may  be 
rendered  against  either  or  both  of  the  defendants  involved,  217. 


PLEADING,  PRACTICE,   AND  PROCEDURE— EVIDENCE.    201 


14.  Courts  will  take  cognizance  of  the  facts  and  law  of  any  instant  case  alone,  and 

expressions  of  opinion  as  to  the  application  of  the  law  to  facts  essentially  different 

are  not  controlling  in  another  case,  217. 
16.  The  Supreme  Court  may  consider  questions  not  specifically  mentioned  in  the 

court  below  if  such  consideration  is  necessary  to  the  determination  of  the 

questions  actually  presented,  218. 

16.  The  Supreme  Court  of  the  District  of  Columbia  has  jurisdiction  of  cases  under 
the  federal  Safety  Appliance  and  Hours  of  Service  Acts,  218. 

17.  Courts  will  take  judicial  notice  of  the  federal  Safety  Appliance  and  Hours  of 
Service  Acts,  219; 

(a)  And  of  the  Orders  of  the  Interstate  Commerce  Commission  made  in  the 
furtherance  thereof,  219. 

A.  EVIDENCE. 

1.  The  burden  of  proof  is  on  the  Government  in  actions  for  the  penalties 
provided  by  the  federal  Safety  Appliance  and  Hours  of  Service 
Acts: 

V.  S.  V.  Philadelphia  &  R.  Ry.  Co.,  160  Fed.,  696. 

District  Court,  Eastern  District  of  Pa.,  March  17,  1908. 

The  United  States  has  the  burden  of  proof  upon  it  in  order 
to  make  out  its  case.  It  has  the  burden  of  proof  from  the  begin- 
ning to  the  end  of  it.  It  never  shifts.  It  is  bound  to  make  out 
its  case,  and  it  is  bound  to  make  it  out  by  evidence  that  is  clear 
and  satisfactory  to  the  jury.  That  is  the  obligation  that  is  laid 
upon  it. —  McPherson,  D.  J.,  p.  699. 

Z7.  S.  V.  Central  of  Georgia  Ry.  Co.,  157  Fed.,  893;  U.  S.  v. 
Louisville  c&  N.  R.  Co.,  162  Fed.,  185;  U.  8.  v.  Chicago  Great 
Western  Ry.  Co.,  162  Fed.,  775;  IJ.  S.  v.  Illinois  Central  R.  Co., 
166  Fed.,  997;  U.  S.  v.  Southern  Pacific  Co.,  167  Fed.,  699; 
U.  S.  v.  Southern  Ry.  Co.,  170  Fed.,  1014;  U.  S.  v.  Montpelier  cfe 
W.  R.  R.  Co.,  175  Fed.,  874;  U.  S.  v.  Philadelphia  &  R.  Ry.  Co., 
and  v.  S.  v.  Lehigh  VaUey  R.  Co.,  D.  C,  E.  D.  Pennsylvania, 
Mar.  17,  1908,  McPherson,  D.  J.  [unreported];  TJ.  S.  v.  Penn- 
sylvania R.  Co.,  D.  C,  E.  D.,  Pennsylvania,  Mar.  18,  1908, 
McPherson,  D.  J.  [unreported] ;  TJ.  S.  v.  Atchison,  T.  dc  S.  F. 
Ry.  Co.,  D.  C,  D.  Arizona,  July  17,  1908,  Sloan,  D.  J.  [unre- 
ported]; U.  S.  V.  Baltimore  &'^0.  R.  Co.,  D.  C,  N.  D.  West 
Virginia,  Jan.  18,  1909,  Dayton,  D.  J.  [unreported];  U.  S.  v. 
Toledo  Terminal  R.  Co.,  and  U.  S.  v.  Baltimore  cfe  0.  R.  Co.,  D.  C, 
N.  D.  Ohio,  June  15,  1909,  Cochran,  D.  J.  [unreported];  U.  S.  v. 
Southern  Pacific  Co.,  D.  C,  D.  Nevada,  Nov.  24,  1909,  Far- 
rington,  D.  J.  [unreported].  See  also  Z7.  S.  v.  Kansas  City 
Southern  Ry.  Co.,  202  Fed.,  828. 

— (a).  But  such  proceedings  being  civil  actions,  the  preponderance  of 
evidence  is  sufficient  to  establish  the  allegations  of  the  plaintiff's 
declaration : 

U.  S.  V.  Nevada  County  N.  G.  R.  Co.,  167  Fed.,  695. 

District  Court,  Northern  District  of  CaHfornia,  Nov.  28,  1908. 
The  jury  is  instructed  that  if  it  believes  from  a  preponder- 
ance of  the  evidence  that  the  defendant  hauled  the  car,  as  alleged 
in  the  first  count  of  plaintiff's  petition,  when  the  coupling  and 


202  EVIDENCE. 


uncoupling  apparatus  on  either  end  of  said  car  was  so  constructed 
that  in  order  to  open  the  knuckle  when  preparing  the  coupler 
for  use  it  was  reasonably  necessary  for  a  man  to  place  part  of 
his  body,  his  arm,  or  his  leg  in  a  hazardous  or  dangerous  position, 
then  its  verdict  should  be  for  the  Government.  You  are  in- 
structed that  if  you  beheve  from  a  preponderance  of  the  evidence 
that  the  defendant  hauled  the  car  as  alleged  in  the  first  count 
of  plaintiff's  petition,  when  said  car  was  not  equipped  with 
couplers  coupling  automatically  by  impact,  and  which  could 
be  both  coupled  and  uncoupled  without  the  reasonable  necessity 
of  a  man  gomg  between  the  end  sills  of  said  cars,  then  your  ver- 
dict should  be  for  the  Government. — Be  Haven,  D.  J.,  p.  696. 

V.  S.  V.  Southern  Ry.  Co.,  170  Fed.,  1014. 

District  Court,  Western  District  of  North  Carolina,  May  7, 1909. 
In  this  case  it  being,  as  stated,  a  civil  action,  the  law  saj^s 
that  the  plaintiff,  to  estabhsh  the  allegations  of  the  complaint,  is 
required  to  produce  a  preponderance  of  evidence ;  in  other  words, 
the  burden  is  on  the  plaintiff  to  present  to  the  jury  facts  and  cir- 
stances  tending  to  sustain  the  contentions  which  outweigh, 
when  put  together,  the  testimony  to  the  contrary. — Boyd,  D.  J., 
p.  1017. 

V,  S.  V.  Northern  Pacific  Ry.  Co.  [unreported]. 

District  Court,  Western  District  of  Washington,  Feb.  13,  1914. 
This  is  not  a  criminal  action  and  the  Government  is  not 
required  to  prove  to  you  beyond  a  reasonable  doubt  that  the 
law  was  violated.  It  is  only  required  to  prove  to  you  by  a  fair 
preponderance  of  the  evidence  that  the  employees  in  question 
were  required  and  permitted  to  be  and  remain  on  duty  for  a 
longer  period  than  16  consecutive  hours. — Cushman,  D.  J. 

U.  S.  V.  Atchison,  T.  &  S.  F.  Ry.  Co.,  167  Fed.,  696;  U.  S.  v. 
Boston  (&  M.  R.  Co.,  168  Fed.,  148;  Z7.  S.  v.  Baltimore  &  0.  R. 
Co.,  176  Fed.,  114;  Wheeling  Terminal  Ry.  Co.  v.  Russell,  209 
Fed.,  795;  U.  S.  v.  Wahash  R.  Co.,  D.  C,  S.  D.  Illinois,  June  6, 
1907,  Humphrey,  D.  J.  [unreported];  U.  S.  v.  Chesapealce  &  0. 
Ry.  Co.,  D.  C,  S.  D.  West  Virginia,  Dec.  2,  1908,  Keller,  D.  J. 
[unreported];  V.  S.  v.  Baltimore  &  0.  R.  Co.,  D.  C,  N.  D. 
West  Virginia,  Jan.  18,  1909,  Dayton,  D.  J.  [mu-eported] ;  V.  S. 
V.  Baltimore  cfc  0.  R.  Co.,  D.  C,  S.  D.  Ohio,  June  10,  1909, 
Sater,  D.  J.  [unreported];  U.  S.  v.  Toledo  Terminxil  R.  Co.,  D.  C, 
N.  D.  Ohio,  June  15,  1909,  Cochran,  D.  J.  [unreported];  TJ.  S.  v. 
Southern  Pacific  Co.,  D.  C,  D.  Nevada,  Nov.  24,  1909,  Farring- 
ton,  D.  J.  [unreported];  TJ.  S.  v.  Northern  Pacific  Ry.  Co.,  D.  C., 
W.  D.  Washington,  Dec.  5,  1913,  Cushman,  D.  J.  [unreported]. 
— (b).  "Preponderance  of  evidence"  defined. 

U.  8.  V.  Central  of  Georgia  Ry.  Co.,  157  Fed.,  893. 

District  Court,  Northern  District  of  Alabama,  Sept.  27,  1907. 
By  the  preponderance  of  the  evidence,  you  are  not  to  under- 
stand that  the  Government  must  make  out  its  case  beyond  a 
reasonable  doubt.  It  is  sufficient  if  you  are  satisfied  in  your  own 
mind  from  all  the  evidence  that  the  defendant  did  the  act  com- 
plained of. — Hundley,  D.  J.,  p.  895. 


GENEEAL  RULES.  203 


V.  8.  V.  Southern  Pacific  Co.^  167  Fed.^ 

District  Court,  Northern  District  of  California,  December  4, 1908. 

And  by  a  preponderance  of  evidence  is  not  meant  the  greater 

number  of  witnesses,  but  it  means  that  evidence  which  to  your 

mind  is  the  most  satisfactory  and  is  entitled  to  the  greatest 

weight. — De  Haven,  D.  J.,  p.  703. 

Z7.  8.  y.  Boston  cfc  M.R.  Co.,  168  Fed.,  148. 

District  Court,  District  of  Massachusetts,  January  5,  1909. 
A  preponderance  of  the  evidence  in  this  case  is  sufficient; 
and  what  does  that  mean  ?  It  means  that  after  balancing  and 
considering  the  evidence  on  the  one  side  and  on  the  other  you  are 
not  left  in  doubt,  but  that  you  find  that  the  evidence  for  the 
Government  outweighs  the  evidence  brought  here  to  meet  it. — 
Dodge,  D.  J.,  p.  151. 

2.  Government  inspectors  of  safety  appliances  are  not  required  to  ad- 
vise the  carriers  on  whose  lines  inspections  are  made  with  respect 
to  their  discovery  of  particular  defects,  and  iheir  failure  so  to  do 
is  not  to  be  considered  by  the  jury  as  discrediting  their  testi- 
mony in  an  action  for  the  recovery  of  the  penalties  provided  by 
the  Acts. 

Norfolk  cfc  F.  By,  Co.  v.  U,  8.,  191  Fed.,  302. 

Circuit  Court  o^^  Appeals,  4th  Circuit,  October  14,  1911. 
It  is  also  insisted  that  the  court  below  erred  in  granting  an 
instruction,  at  the  request  of  counsel  for  the  Government,  to  the 
effect  that  the  government  inspector  was  under  no  legal  obliga- 
tion to  inform  the  railroad  company  of  defective  cars.  Congress 
by  the  enactment  of  the  statute  by  virtue  of  which  this  suit  was 
instituted  evidently  intended  to  hold  the  railroad  companies  to 
a  high  degree  of  dihgence  in  equipping  and  maintaining  their 
cars  with  the  proper  safety  appliances.  If  it  is  the  intention  of 
the  law  that  when  an  inspector  goes  from  place  to  place  and 
when  he  finds  a  car  in  a  defective  condition  that  it  is  his  duty  to 
notify  the  company  of  the  same  before  the  car  is  transported, 
then  it  would  be  impossible  to  secure  anything  like  a  fair  enforce- 
ment of  the  law  which  penalizes  the  railroads  for  not  properly 
equipping  and  maintaining  their  cars  with  safety  appliances. 
*  *  *  Under  the  circumstances  of  this  case,  and  in  view  of 
the  requirements  of  the  statute,  we  think  the  court  did  not  err  in 
granting  this  instruction. — PritcJiard,  C.  J.,  pp.  307,  308. 

Chicago,  B.  &  Q.  R.  Co.  v.   U.  8.,  211  Fed.,  12. 

Circuit  Court  of  Appeals,  8th  Circuit,  November  28,  1913. 
The  company  also  urges  that  it  was  the  duty  of  the  govern- 
ment inspectors  when  they  discovered  the  defective  condition  of 
the  car  in  the  Twelfth  Street  yard  to  inform  the  company's  em- 
ployees, so  that  the  defect  could  be  supplied  before  the  car  was 
moved.  Such  a  ruhng  would  make  it  almost  impossible  for  the 
Government  to  enforce  the  statute.  It  would  be  difficult,  indeed, 
to  show  at  the  conclusion  of  a  trip  that  the  car  was  defective  when 
the  movement  started.  Such  evidence  could  only  be  obtained 
from  railway  employees,  and,  as  a  rule,  would  show  that  the  wit- 
nesses themselves  were  guilty  of  negligence  in  not  remedying  a 
known  defect.     Government  inspectors  are  no  part  of  the  com- 


204  EVIDENCE. 


pany's  repair  force.  It  is  their  duty  to  ascertain  whether  or  not 
the  company  is  violating  the  statute.  They  can  do  that  effec- 
tively in  no  other  way  than  that  adopted  by  the  inspectors  in  the 
present  case. — Amidon,  D.  J.,  pp.  15-16. 

JJ,  8,  y.  Chicago  Great  Western  Ry.  Co.,  162  Fed.,  775. 

District  Court,  Northern  District  of  Iowa,  May  6,  1908. 

The  inspectors  of  the  Government  were  not  required  to 
inform  the  employees  of  the  railroad  company,  when  they  made 
the  inspection  of  these  cars,  of  the  defects  in  the  appliances,  if 
any  they  discovered,  and  you  should  not  discredit  their  testi- 
mony solely  because  thev  did  not  so  inform  them. — Reed,  D.  J., 
p.  779. 

U.  S.  y.  Baltimore  cfc  0.  R.  Co.,  170  Fed.,  456. 

District  Court,  Western  District  of  Pennsylvania,  May  17, 1909. 
I  have  been  asked  to  charge  you  that  it  was  not  necessary  for 
the  agents  or  officers  of  the  Intei'state  Commerce  Commission 
to  notify  the  railroad  company  of  these  defects,  and  I  will  so 
charge  you  that  there  was  no  legal  liability  upon  them  to  do  so. 
But  1  can  not  help  but  feel  that,  in  view  of  the  purpose  for  which 
this  Act  was  passed,  and  in  view  of  the  fact  that  those  points 
were  repair  pomts,  it  was  a  matter  of  common  ordinary  honesty, 
for  the  purpose,  a  matter  of  common  ordinarv  human  obligation, 
to  have  informed  the  railroad  company,  it  they  had  time  to 
inform  them,  or  to  inform  the  officers  in  charge  of  the  repairing 
and  inspecting  of  the  cai*s  there,  before  permitting  those  cars 
to  go  out  upon  the  road  as  a  menace  to  people  who  might  have 
to  use  them,  of  defects  found.  I  will  charge  you  that  there  was 
no  legal  liability  upon  them  to  do  so,  but  I  have  expressed  myself 
as  I  have  done  because  I  think  that  is  right. — Orr,  t).  J.,  p.  461. 

TJ.  8.  V.  Atchison,  T.  di  8.  F.  Ry.  Co.  [unreported]. 

District  Court,  Fourth  District  of  Arizona,  July  17,  1908. 

The  inspectors  for  the  Government  are  not  required  to 

notifj  the  employees  of  the  railroad  company  of  existing  defects 

previous  to  or  at  the  time  of  movement  of  defective  cars,  though 

such  inspectors  previously  discovered  such  defects. — Sloan,  D.  J. 

U.  8.  V.  Atlantic  Coast  Line  R.  Co.  [unreported]. 

District  Court,  District  of  South  Carolina,  February  24, 1909. 
Inspectors  in  the  employ  of  the  Interstate  Commerce  Com- 
mission are  not  required  to  mform  the  employees  of  the  defend- 
ant, when  they  make  the  inspection  of  the  cars  sued  upon,  of  the 
defects  found  in  the  appliances;  the  jury  should  not  discredit 
their  testimony  because  the  inspectors  did  not  so  inform  the 
employees  of  the  defendant. — Brawley,  D.  J. 

TJ.  8.  V.  Baltimore  &  0.  R.  Co.  [unreported]. 

District  Court,  Northern  District  of  Ohio,  June  15,  1909. 
It  is  also  argued  and  claimed  that  tliese  government  in- 
spectors did  not  report  to  the  railroad  company  or  the  railroad 
employees  the  defects  which  they  found.  It  is  testified  to,  how- 
ever, by  the  government  inspectors  that  their  instructions  were 
not  to  report  them  to  the  railroad  company.  Now,  the  rules 
under  which  they  were  acting  did  not  permit  their  doing  so. 


GENERAL  RULES.  205 


That  rule  may  be  a  wise  or  an  unwise  rule;  but,  if  that  is  so,  I 
don't  see  how  that  circumstance  affects  the  weight  of  the  testi- 
mony of  these  men.  Possibly  if  they  had  no  such  rule,  no  such 
instruction  for  their  guidance,  and  they  did  not  report  the 
defects  to  the  railroad  company  so  that  they  might  be  remedied, 
that  might  to  a  certain  extent  affect  the  weight  of  their  testi- 
mony.— Cochran,  D.  J. 

U.  S.  V.  Southern  Pacific  Co.  [unreported]. 

District  Court,  District  of  Nevada,  November  24,  1909. 
There  is  no  legal  obligation  on  the  part  of  the  government 
inspectors  to  notify  a  railway  company  of  defects  found  in  its 
equipment. — Farrington,  D.  J. 

See  also  NashviUe,  C,  cfe  St  L.  By.  Co.  v.  Henry,  164  S.W.,  310. 

In   an   action  for  the  recovery  of  the  penalties  provided  by  the 
federal  Safety  Appliance  Acts,  no  witness  is  to  be  discredited  by 
the  jury  merely  by  reason  of  his  personal  interest  as  an  inspector 
of  the  Government  or  as  an  employee  of  a  defendant  carrier. 
Norfolk  &  W.  By.  Co.  v.  U.  S.,  177  Fed.,  623. 

Circuit  Court  of  Appeals,  4th  Circuit,  March  4,  1910. 

We  think  the  District  Court  for  the  Northern  District  of  Ohio, 
in  U.  S.  y.  Baltimore  dbO.  B.  Co.  (not  reported)  [but  cited  post] 
Judge  Cochran,  charging  the  jury  in  a  similar  case,  has  rightly 
held:  '^In  considering  the  testimony  of  witnesses,  the  jury  should 
not  give  either  more  or  less  weight  to  the  testimony  of  any  witness 
because  of  the  fact  that  such  witness  testifies  on  behalf  of  the 
Government,  or  on  behalf  of  the  railroad  company,  but  the  jury 
should  give  to  the  testimony  of  each  witness  that  weight  which 
in  its  judgment  it  is  entitled  to  from  all  the  facts  and  circum- 
stances in  the  case." — Dayton,  D.  J.,  pp.  629-630. 
U.  S.  V.  Chicago  Great  Western  By.  Co.,  162  Fed.,  775. 

District  Court,  Northern  District  of  Iowa,  May  6,  1908. 

You  should  not  discredit  the  testimony  of  any  witness  solely 
because  he  is  in  the  employ  of  either  the  Government  as  an  inspec- 
tor of  railroad  trains  or  cars,  or  in  the  employ  of  the  defendant 
railroad  company,  but  you  will  determine  the  credibihty  of  such 
witness  and  the  weight  to  be  given  to  the  testimony  of  each  as  I 
have  already  said  to  you;  and  when  you  have  determined  that, 
then  you  mil  determine  where  the  greater  weight  of  the  testi- 
mony is  upon  these  different  questions  of  fact  about  which  they 
have  testified  before  you. — Bern,  D.  J.,p.  779. 
U.  S.  V.  Wahash  B.  Co.  [unreported]. 

District  Court,  Southern  District  of  Illinois,  June  6, 1907. 
All  these  considerations  you  have  a  right  to  weigh  in  making 
up  your  judgment  as  to  the  weight  to  be  given  to  the  testimony 
of  any  witness,  but  in  doing  this  you  will  not  give  either  more  or 
less  weight  to  the  testimony  of  any  witness  because  of  the  fact  that 
such  witness  testifies  on  behalf  of  the  Government,  or  because  of 
the  fact  that  such  witness  is  an  employee  of  the  railroad  company, 
but  you  will  give  to  the  testimony  of  each  witness  that  degree  of 
weignt  which,  in  your  judgment,  it  is  entitled  to,  from  all  facts 
and  circumstances  in  the  case. — Humphrey,  D.  J. 


206  EVIDENCE. 


TJ.  S,  V.  Atchison,  T.  dc  S.  F.  Ry.  Co.  [unreported]. 

District  Court,  Fourth  District  of  Aiizona,  July  17,  1908. 
In  considering  the  testimony  of  the  witnesses  who  have  testi- 
fied before  you,  you  have  a  right  to  weigh,  in  making  up  your 
judgment,  the  testimony  of  any  witness,  but  in  doing  this  you 
will  not  give  either  more  or  less  weight  to  the  testimony  of  any 
witness  because  of  the  fact  that  such  witness  testifies  on  behalf 
of  the  Government  or  because  of  the  fact  that  such  witness  testifies 
on  behalf  of  the  railroad  company.  But  you  will  give  to  the 
testimony  of  each  witness  that  weight  which,  in  your  judgment, 
it  is  entitled  to  from  all  the  facts  and  circumstances  in  the  case. — 
Sloan,  D.J. 

U.  8.  V.  Baltimore  S  0.  R.  Co.  [unreported]. 

District  Court,  Southern  Distiict  of  Ohio,  June  10,  1909. 
These  men  who  testified  before  you,  whether  they  are  rail- 
road employees  or  inspectors,  are  not  to  be  disbelieved  simply 
because  they  work  for  the  defendant  or  are  in  the  Government's 
8er^dce,  as  the  case  may  be. — Sater,  D.  J. 

TJ.  8.  V.  Atchison,  T.  <h  8.  F.  Ry.  Co.  [unreported]. 

District  Court,  Northern  District  of  Illinois,  December  27, 1909. 
You  have  no  right  to  disregard  the  testimony  of  any  witness 
merely  because  he  is  employed  by  somebody.  You  can  not  cast 
out  the  testimony  of  these  two  witnesses  for  the  United  States 
because  they  are  inspectors  in  the  employ  of  the  Interstate  Com- 
merce Commission;  you  can  not  cast  out  the  testimony  of  the 
defendant's  witnesses  because  they  are  in  the  employ  of  the 
defendant  or  in  the  employ  of  other  railway  companies,  though  all 
of  those  things  are  to  be  taken  into  consideration  by  the  jury  in 
determining  the  probable  weight  which  you  will  give  to  their  testi- 
mony.— Landis,  D.  J. 

U,  8.  V.  Baltimore^dc  0.  R.  Co.,  D.  C,  N.  D.  Ohio,  June  15,  1909, 
Cochran,  D.  J.  [unreported  but  cited  with  approval  by  District 
Judge  Dayton,  in  Norfolk  <&  W.  Ry.  Co.  v.  TJ.  8.,  177  Fed.,  623, 
ante.] 

Other  things   being   equal,  positive   testimony  is  to  be  accorded 

greater  weight  than  negative  testimony: 
TJ.  8.  V.  Southern  Pacific  Co.,  167  Fed.,  699. 

District  Court,  Northern  District  of  California,  Dec.  4, 1908. 
In  considering  this  testimony,  positive  testim.ony  is  to  be 
preferred  to  negative  testimony,  other  things  being  equal;  that 
IS  to  say,  when  a  credible  witness  testifies  as  to  the  existence  of  a 
fact  at  a  particular  time  and  place,  and  another  equally  credible 
witness  testifies  to  having  failed  to  observe  such  fact,  the  positive 
declaration  is  ordinarily  to  be  preferred  to  the  negative  in  the 
absence  of  other  testimony  or  evidence  corroborating  the  one  or 
the  other. — De  Haven,  D.J.,ip.  703. 
TJ.  8.  V.  Atchison,  T.  cfe  8.  F.  Ry.  Co.,  [unreported]. 

District  Court,  Fourth  District  of  Arizona,  July  17,  1908. 
In  this  connection  it  is  proper  to  state  that  positive  testi- 
mony is  to  be  preferred  to  negative  testimony,  other  things  being 
equal;  that  is  to  say,  when  a  credible  witness  testifies  to  having 


GENERAL  RULES.  207 


observed  a  fact  at  a  particular  time  and  f)lace,  and  another 
equally  credible  witness  testifies  to  having  failed  to  observe  the 
same  fact,  with  the  same  or  equal  opportunity  to  observe  such 
fact,  the  positive  declaration  is  to  be  preferred  to  the  negative, 
in  the  absence  of  other  testimony  or  evidence  corroborating  the 
one  or  the  other. — Sloan,  D.J. 

V.  8.  V.  Baltimore  <&  0.  R.  Co.,  [unreported]. 
District  Court,  Northern  District  of  West  Virginia,  Jan.  18, 1909. 
Under  the  ordinary  rules  of  evidence,  positive  testimony  is 
stronger  than  negative  testimony  where  that  negative  testimony 
is  not  so  strong  as  to  make  it  apparent  that  the  witnesses  stating 
the  positive  fact  are  mistaken  or  untruthful. — Dayton,  D.  J. 

TJ.  S,  V.  Baltimore  cfc  0.  R.  Co.  [unreported]. 

District  Court,  Southern  District  of  Ohio,  June  10,  1909. 
Positive  testimony  is  to  be  preferred  to  negative  testimony, 
other  things  being  equal.  That  is  to  say,  when  a  credible  wit- 
ness testifies  to  having  observed  a  fact  at  a  particular  time  and 
place,  and  another  equally  credible  witness  testifies  to  having 
failed  to  observe  the  same  fact,  having  the  same  or  equal  oppor- 
tunity so  to  observe  such  fact,  the  positive  declaration  is  to  be 
preferred  to  the  negative  in  the  absence  of  other  testimony 
corroborating  the  one  or  the  other. — Sater,  D.  J. 

V.  S.  V.  Baltimore  &  0.  R.  Co..  170  Fed.,  456. 

— (a.)  Bnt  the  testimony  of  a  company  inspector  that  lie  inspected  par- 
ticular cars  in  the  furtherance  of  his  duty,  and  that  he  failed  to  find 
particular  defects,  is  positive  testimony  of  a  negative  fact. 
Norfolk  cfc  Western  Ry  Co.  v.  U.  S.,  177  Fed.,  623  [and  cases  cited]. 

5.  A  memorandum  made  by  a  government  inspector  from  original 
waybills,  showing  the  origins,  destinations,  consignors  and 
consignees  of  particular  shipments,  may  be  read  to  the  jury  as  an 
original  memorandum  made  at  the  time  of  his  inspection,  and, 
in  the  absence  of  evidence  to  the  contrary,  may  be  inferred  to  have 
been  correctly  made. 
Louisville  &  N.  R.  Co.  v.  U.  S.,  186  Fed.,  280. 

Circuit  Court  of  Appeals,  6th  Circuit,  March  3,  1911. 

Another  witness  named  Cash,  who  was  a  car  inspector 
employed  by  the  Interstate  Commerce  Commission  for  the  pur- 
pose of  detecting  violations  by  railroads  of  the  Safety  Appliance 
Acts,  testified  that  he  saw  the  original  waybills  in  the  caboose 
of  the  train  containing  the  cars  in  question,  and  that  he  made  a 
meniorandum  of  them  showing  the  origin  of  the  shipments, 
destinations,  and  the  names  of  the  consignors  and  of  the  con- 
signees. This  was  offered  in  evidence.  The  record  shows  that 
this  memorandum  was  read  to  the  court  and  jury  without  objec- 
tion. Subsequently,  and  at  the  close  of  his  evidence,  counsel 
for  the  railway  company  moved  to  exclude  the  testimony  of  the 
witness,  ^'because,"  as  they  said,  "it  is  not  shown  as  a  matter 
of  fact  whether  this  was  properly  done  or  whether  it  is  the 
original.''  Assumiug,  without  deciding,  that  the  objection  was 
seasonably  made,  we  understand  that  the  last  objection  must 


208  EVIDENCE. 


refer  to  the  question  whether  the  memorandum  produced  was 
his  original  memorandum.  But  the  evidence  was  such  as  might 
satisfy  the  court  and  jury  that  it  was  the  original  memorandum 
which  he  made  at  the  time. 

And  as  to  the  question  whether  ''it  was  properly  done"  it 
might  fairly  be  inferred  that  when  he  said  he  made  a  memoran- 
dum of  the  bills  he  meant  that  he  made  it  correctly. — Severens, 
C.  J.,  p.  285. 

Records  kept  by  the  defendant  for  the  purpose  of  giving  necessary 
information  on  which  the  carrier  itself  would  rely,  although  not 
proved  as  would  be  necessary  if  offered  by  the  defendant  for  self- 
serving  purposes,  are  admissible  when  offered  by  the  plaintiff  as 
in  the  nature  of  admissions. 

Louisville  d:  K  R.  Co.  v.  U,  S.,  186  Fed.,  280. 

Circuit  Court  of  Appeals,  6th  Circuit,  March  3,  1911. 

Proof  of  what  the  car  contained  might  have  been  made  by 
the  original  waybills,  but  they  were  not  the  only  competent 
evidence  of  the  facts.     They  were  not  contractual  instruments 

.  between  these  parties  and  were  not  the  necessary  proof  of  the  facts 
which  they  might  have  a  tendency  to  prove.  An  admission  of 
the  facts  made  by  the  defendant  would  be  competent  evidence  to 
prove  them,  independently  of  the  waybills.  The  records  kept 
and  preserved  by  the  agent  at  Paris,  employed  for  the  purpose 
by  his  company,  were  competent,  thougn  doubtless  not  incon- 
testible,  evidence  to  prove  an  admission  of  the  fact  by  the  rail- 
road company.  For  this  purpose  it  would  not  be  necessary  to 
establish  all  the  necessary  conditions  of  proof  which  would  be 
required  if  the  railroad  company  were  offering  these  records  for 
some  self-serving  purpose  oi  its  own.  These  records  were  kept 
for  the  very  purpose  of  giving  necessary  information  on  which 
the  company  itself  would  rely. — Severens,  C.  J.,  pp.  284-285. 

The  determination  of  what  is,  and  what  is  not,  a  handhold  within 
the  purview  of  the  federal  Safety  Appliance  Acts  is  within  the 
province  of  the  jury : 

U.  S.  V.  Baltimore  &  0.  R.  Co.  [unreported]. 

District  Court,  Northern  District  of  West  Virginia,  Jan  18, 1909. 
Gentlemen,  it  is  for  you  to  determine,  touching  the  hand- 
hold on  the  engine  in  this  case,  whether  or  not  the  appliance  that 
was  testified  to  by  the  witness  Johnson,  at  the  end  or  corner  of 
the  tender  and  the  release  bar,  was  a  fair  and  proper  substitute 
for  the  ordinary  grab  irons  referred  to  in  this  statute. — Dayton, 
B,J. 
v.  S.  V.  Atchison,  T.  cfc  S.  F.  Ry.  Co.  [unreported]. 

District  Court,  Northern  District  of  Illinois,  December  27,  1909. 
What  is  a  secure  grab  iron  or  handhold  the  statute  has  not 
definitely  and  distinctly  defined.  It  is  for  you  to  answer  that 
question  and  determine  whether  or  not  this  coupling  lever  that 
was  provided  was  a  secure  grab  iron  or  secure  handhold  within 
the  meaning  of  this  statute. — Landis,  D.  J. 


GENERAL  RULES.  209 


U.  S.  V.  Spolcane  <&  I.  E.  R.  Co.  [unreported]. 

District  Court,  Eastern  District  or  Washington,  Oct.  31,  1912. 
The  purpose  of  the  handhold  is  obvious.  As  declared  by 
the  statute,  it  is  for  the  greater  security  of  men  in  coupling  ana 
imcoupling  cars.  In  order  to  subserve  that  purpose  it  must  be 
located  at  the  proper  place ;  it  must  be  located  so  that  it  can  be 
seen,  and  it  must  be  of  such  form  and  size  that  it  can  be  readily 
seized  in  an  emergency.  Whether  it  satisfies  these  requirements 
is  not,  in  my  opinion,  a  matter  for  experts  to  determine,  but  is 
within  the  common  knowledge  of  all  men  of  ordinary  intelli- 
gence. *  *  *  The  jury  in  this  case  heard  the  testimony  and  by 
consent  of  parties  viewed  and  inspected  the  so-called  handholds 
in  question  as  well  as  the  handholds  in  use  on  one  of  the  steam 
railways  passing  through  the  city;  and  from  such  view  in  the 
light  of  the  testimony  they  were  better  able  to  determine  the 
issue  correctly  than  if  it  had  been  clouded  and  obscured  by  the 
biased  opinions  of  partisan  experts. — RudMn,  D.  J. 

(a).  The  competency  of  openings  in  the  buffers  on  the  ends  of  cars, 
as  substitutes  for  handholds,  is  not  a  proper  subject  for  expert 
testimony,    where   such   openings   are   subject   to   the   personal 
inspection  of  the  jury. 
Spolcane  c&  I.  E,  R.  Co.  v.   U.  S.,  210  Fed.,  243. 

Circuit  Court  of  Appeals,  9th  Circuit,  January  5,  1914. 

In  its  instructions  to  the  jury  regarding  this  matter  the  court 
told  them  that  the  Act  of  Congress  relative  to  safety  appliances 
provided  that  raihoad  cars  ^^used  in.  interstate  commerce  shall 
be  provided  with  secure  grab  irons  or  handholds  on  the  ends  and 
sides  of  each  car  for  greater  safety  to  men  in  coupling  and  uncoup- 
ling cars, ' '  and  insti:ucted  them  as  follows :  *  *  *  "  Gentlemen, 
you  have  heard  the  testimony  in  this  case,  and  you  have  ex- 
amined the  handholds  in  question,  and  it  is  for  you  to  say  from 
that  testimony  and  from  your  personal  examination  of  the  cars 
whether  the  appliance  provided  by  this  company  complies  with 
the  Act  of  Congress;  in  other  words,  whether  it  affords  tnat safety 
and  protection  to  employees  which  the  law  contemplates  and 
requires.     *     *     *" 

We  are  of  the  opinion  that  the  plaintiff  in  error  has  no  valid 
ground  of  objection  to  these  instructions  and  agree  with  the  trial 
judge  that  the  question  as  to  whether  the  openings  ia  the  buffer 
on  the  ends  of  the  cars  afforded  the  security  intended  by  the  Act  of 
Congress  was  not  the  subject  of  expert  testimony,  and  that  the 
personal  inspection  of  such  openings  by  sensible  jurors  was  a 
safer  guide  to  the  truth  in  regard  to  the  matter  than  the  mere 
opinion  of  witnesses. — Ross,  v.  J.,  pp.  248-249. 

8.  The  operation  of  automatic  couplers  is  a  proper  subject  for  expert 
testimony : 
WabasJiR.  Co.  v.  U.  S.;  Elgin  J.  cfc  E.  Ry.  Go.  v.  TJ.  S.,  168  Fed.,  1- 
Circuit  Court  of  Appeals,  7th  Circuit,  February  3,  1909. 

In  our  judgment  the  mode  of  operation  of  automatic  cou- 
pling mechanism  and  the  effect  of  various  conditions  thereof  were 
proper  subjects  for  expert  testimony. — Baker,  C.  J.,  p.  5. 

50611—15 14 


210  EVIDENCE. 


Grand  Trunk  Western  Ry.  Oo.  v.  Lindsay,  201  Fed.,  836. 

Circuit  Court  of  Appeals,  7th  Circuit,  November  25,  1912. 
Miller  had  worked  for  several  years  as  a  brakeman,  and 
coupling  was  a  large  part  of  his  work.  We  think  he  was  suffi- 
ciently qualified.  He  had  already  testified  that  he  had  put  his 
"heel  against  the  knuckle  trying  to  push  it  in,  and  it  would  not 
go."  His  testimony  (objected  to)  that  couplers  in  ordinary 
repair  can  be  closed  with  the  foot  as  well  as  the  hand  might  be 
deemed  a  matter  of  fact  learned  from  observation  and  experience; 
but,  if  it  be  taken  as  a  matter  of  opinion,  we  consider  the  testi- 
mony admissible.  Automatic  couplers,  like  buffers,  switches, 
frogs,  cattle  guards,  spark  arresters,  and  other  railroad  machines 
and  appliances,  are  not  to  be  supposed  to  come  so  fully  within 
the  knowledge  of  average  jurjmen  that  experts  may  not  properly 
be  allowed  to  testify  respectmg  their  nature,  operation,  and  nor- 
mal condition.  [Oila  Valley  Ry.  Co.  v.  Lyon,  203  U.  S.,  465.] — 
Per  Curiam,  p.  844. 

(a).  The  exhibition  of  model  couplers  to  the  jury,  merely  for   the 
purpose  of  illustrating  particular  defects,  is  permissible. 
Norfolk  cfc  W.  R,  Co.  v.  U.S.,  191  Fed.,  302. 

Circuit  Court  of  Appeals,  4th  Circuit,  October  14,  1911. 

The  model  in  question  was  used  merely  for  the  purpose  of 
aiding  the  court  and  the  jury  in  ascertaining  as  to  whether  there 
was  any  defect  in  the  coupler,  and  it  was  admitted  by  the  Gov- 
ernment that  this  model  was  not  exactly  like  the  coupler  attached 
to  the  car  in  question.  It  was  not  introduced  in  evidence,  but 
the  court  permitted  the  use  of  the  same  to  illustrate  the  condition 
of  the  coupler  just  as  maps  and  drawings  are  used  in  the  trial  of 
ejectment  suits.  *  *  *  Thus  it  will  be  seen  that  this 
model  was  used  solely  for  the  purpose  of  illustrating  the  exact 
condition  of  the  chain  at  the  time  the  inspection  was  made. 
Where,  in  a  trial  like  the  one  at  bar,  there  is  a  question  as  to 
complicated  machinery,  it  is  competent  to  use  any  model  or 
drawing  that  may  illustrate  the  condition  of  such  machinery,  so 
as  to  give  the  jury  a  clear  and  distinct  idea  as  to  the  nature  and 
character  of  tne  defect,  in  order  that  they  may  intelligently  deal 
with  the  question  that  is  submitted  for  their  consideration.  1 
Wigmore  on  Evidence,  sec.  791,  contains  the  following  statement 
as  to  the  rule :  ' '  The  use  of  models,  maps,  and  diagrams  as  modes 
of  conveying  a  witness'  knowledge  is  illustrated  in  manifold 
rulings,  as  well  as  in  the  daily  practice  of  trials  "  [citing  Watson^ 8 
Trial,  32  How.  St.  Tr.,  125.] 

Also  in  the  following  cases  this  rule  is  announced :  Western 
Gas  Co.  V.  Banner,  97  Fed.,  882;  Southern  Pac^c  Co.  v.  Hall,  100 
Fed.760;  Dohson  v.  WhisenJiant,  8  S.  E.,  126.  We  think  the  action 
of  the  court  below  in  permitting  the  use  of  models  merely  for  the 
purpose  of  illustration  was  not  prejudicial  to  the  rights  of  the 
defendant. — Pritchard,  C.J..,  p.  305. 


GENERAL  RULES.  211 


B.  PLEADING,  PRACTICE,  AND  PROCEDURE. 

1.  The  purpose  of  a  proviso  ordinarily  is  to  restrain  or  modify  the 

enacting  clause  of  a  statute. 
U.  S.  V.  Kansas  City  Southern  Ry.  Co.,  189  Fed.,  471.  [Citing 
U.  S.  V.  Dickson,  15  Pet.,  141;  Dollar  Savings  Bank  v.  Z7.  /S., 
19  Wall.,  227;  Leavenworth,  etc.,  R.  Co.  v.  V.  S.,  92  U.  S.,  733; 
Ryan  r.  Carter,  93  U.  S.,  78;  Schlemmer  v.  Buffalo  R.  <&  P.  R» 
Co.,  205  U.  S.,  1;  Boston  Safe  Deposit  Co.  v.  Hudson,  68  Fed., 
758;  Gould  v.  New  York  Life  Ins.  Co.,  132  Fed.,  927;  McRae 
V.  Holcomb,  46  Ark.,  306.] 

2.  In  actions  under  the  federal  Safety  Appliance  and  Hours  of  Service 

Acts,  the  Government  is  not  required  in  its  declarations  to  nega- 
tive the  provisos  in  those  statutes. 
U.  S.  V.  Houston  B.  c&  T.  Ry.  Co.,  205  Fed.,  344. 

Circuit  Court  of  Appeals,  5th  Circuit,  May  5,  191". 

The  railroad  still  further  contends  that  the  rulings  of  the 
court  were  correct  because  plaintiff  did  not  negative  that  the 
acts  and  conduct  of  the  defendant  complained  of  came  within 
the  exception  of  the  Act,  which  reads  as  follows:  ''*  *  *  in 
case  of  emergency,  when  the  employees  named  in  this  proviso 
may  be  permitted  to  be  and  remam  on  duty  for  four  additional 
hours  in  a  twenty^our  hour  period  on  not  exceeding  three  days 
in  any  week."  We  are  agam  forced  to  disagree.  The  action, 
though  for  a  penalty,  is  civil  in  its  nature,  and  the  pleader  is 
not  required  to  state  his  cause  of  action  with  the  exactness 
and  particularity  that  would  be  necessary  in  a  criminal  indict- 
ment. In  the  nature  of  things,  in  most  cases  arising  under  the 
Act,  facts  briuging  the  case  within  the  exception  would  be  only 
within  the  knowledge  of  the  railroad,  and  the  Government 
should  not  be  required  to  allege  that  of  which  it  knows  nothing 
simply  to  conform  to  a  mere  technicality  of  pleading.  If  facts 
existed  that  would  bring  the  case  within  the  exception,  they 
constituted  a  defense  that  the  railroad  should  have  pleaded 
and  proved.  [New  York  Central  c&  H.  R.  R.  Co.  v.  U.  8.,  165 
Fed.,  833;  U.  S.  v.  Kansas  City  Southern  Ry.  Co.,  202  Fed. 
S28.]— Foster,  D,  J.,  p.  348. 
U.  S.  y.  Kansas  City  Southern  Ry.  Co.,  202  Fed.,  828. 

Circuit  Court  of  Appeals,  8th  Circuit,  January  24,  1913. 

The  burden  was  upon  the  Government  to  establish  that  the 
defendant  had  required  or  permitted  its  employees  to  remain  on 
duty  longer  than  16  hours;  this,  being  conceded,  made  a  prima 
facie  case.  The  excuses  embodied  in  the  proviso  are  separate 
and  affirmative  defenses  [Chicago,  B.  <&  Q.  R.  Co.  v.  U.  S.,  195 
Fed.,  241],  which  must  be  pleaded  in  the  answer;  and  the  burden 
is  upon  tfie  defendant  to  sustain  sucli  allegations.  Counsel  for 
the  railway  company  recognized  this  rule  by  the  particularity 
with  which  they  pleaded  a  latent  defect  in  the  coal,  both  at  the 
outset  and  later  by  amendment,  and  also  by  assuming  the  burden 
of  proof.  If  reliance  was  placed  upon  defects  in  the  engine,  such 
as  a  broken  shaker  rod  and  leaky  flues,  these  defects  should  have 


212  PLEADING,  PRACTICE,  AND  PROCEDURE. 


been  pleaded.  The  Government  should  have  been  advised  of  the 
defenses  it  would  be  required  to  meet.  The  answer  contains  no 
such  specific  averments,  and  a  general  denial  was  insufficient  for 
the  purpose. —  Van  VallcenburgJi,  D.  J.,  p.  832. 
Per  contra  [in  actions  under  the  proviso  in  section  2  of  the  Hours  of 
Service  Act] : 

U.  S.  V.  Missouri,  K.  &  T.  Ry.  Co.  etal,  D.  C,  D.  Kansas,  Feb.  21, 1911,  Pollock, 
D.  J.  [unreported]. 

— (a).  But  the  defendant  carriers  in  sucli  actions  mnst  bring  themselves 
strictly  within  the  terms  of  such  provisos  in  order  to  avail  themselves 
of  the  immunities  thereby  afforded. 
U.  S.  V,  Trinity  &  B.  V.  Ry.  Co.,  211  Fed.,  448. 

Circuit  Court  of  Appeals,  5th  Circuit,  December  1,  1913. 

By  all  the  canons  of  construction  it  [the  defendant  in  the 
instant  case]  must  clearly  bring  itseK  within  the  terms  of  the  pro- 
viso before  it  can  demand  inmiunity.     \U.  8.  v.  Dickson,  15  Pet. 
141,  165-166.]— CaZZ,  D.  J.,  p.  453. 
.  U.  S.  V.  Kansas  City  Southern  Ry.  Co.,  202  Fed.,  828. 

Circuit  Court  of  Appeals,  8th  Circuit,  January  24,  1913. 

It  being  conceded  that  the  employees  named  had  remained 
on  duty  for  a  longer  period  than  16  consecutive  hours,  substan- 
tiallv  as  charged,  the  defendant  railway  assumed  the  burden  of 
discharging  itself  from  liability  therefor  by  seeking  to  bring 
itself  within  the  following  provision  of  the  Act:  ^'Provided,  That 
the  provisions  of  this  Act  snail  not  apply  in  any  case  of  casualty 
or  unavoidable  accident,  or  the  act  of  God ;  nor  where  the  delay 
was  the  result  of  a  cause  not  known  to  the  carrier,  or  its  officer 
or  agent  in  charge  of  such  employee  at  the  time  said  employee 
left  a  terminal,  and  which  could  not  have  been  foreseen."  *  *  * 
The  excuses  embodied  in  the  proviso  are  separate  and  affirmative 
defenses  [Chicago,  B.  &  Q.  R.  Co.  v.  U.  S.,  195  Fed.,  241]  which 
must  be  pleaded  in  the  answer;  and  the  burden  is  upon  the 
defendant  to  sustain  such  allegations.  Counsel  for  the  railwav 
company  recognized  this  rule  by  the  particularity  with  whicn 
they  pleaded  a  latent  defect  in  the  coal,  both  at  the  outset  and 
later  oy  amendment,  and  also  by  assuming  the  burden  of  proof. 
If  reliance  was  placed  upon  defects  in  the  engine,  such  as  a 
broken  shaker  rod  and  leaky  flues,  these  defects  should  have 
been  pleaded.  The  Government  should  have  been  advised  of 
the  defenses  it  would  be  required  to  meet.  The  answer  contains 
no  such  specific  averments,  and  a  general  denial  was  insufficient 
for  the  purpose.     *     *     * 

To  bring  itself  within  the  exceptions  stated,  the  carrier 
must  be  held  to  as  high  a  degree  of  diUgence  and  foresight  as  may 
be  consistent  with  the  object  aimed  at  and  the  practical  operation 
of  its  railroad.  Conformably  to  this  view,  it  has  been  uniformly 
held  by  the  courts  that  ordinarily  delays  in  starting  trains  by 
reason  of  the  fact  that  another  train  is  late;  from  sidetracking 
to  give  superior  trains  the  right  of  way,  if  the  meeting  of  such 
trams  could  have  been  anticipated  at  the  time  of  leaving  the 
starting  point;  from  getting  out  of  steam  or  cleaning  fires;  from 
defects   m    equipment;  from   switching;  from    time   taken  for 


GENEEAL  RULES.  213 


meals;  and,  in  short,  from  all  the  usual  causes  incidental  to 
operation,  are  not,  standing  alone,  valid  excuses  within  the 
meaning  of  this  proviso.  The  carrier  must  go  still  further  and 
show  that  such  delays  could  not  have  been  foreseen  and  pre- 
vented by  exercise  of  the  high  degree  of  diligence  demanded. — 
Van  Vallcenburgh,  D.  J.,  pp.  831,  832,  833,  834. 
Z7.  S.  V.  Kansas  City  Southern  Ry.  Co.,  189  Fed.,  471. 

District  Court,  Western  District  of  Arkansas,  July  3,  1911. 
As  to  how  a  proviso  should  be  construed,  Mr.  Justice  Story, 
in  Z7.  8.  V.  Dickson  [15  Pet.,  141],  said:  ''The  general  rule  of  law 
which  has  ordinarily  prevailed  and  become  consecrated  almost 
as  a  maxim  in  the  intei'pretation  of  statutes  is  that  where  the 
enacting  clause  is  general  in  its  language  and  objects,  and  a  pro- 
viso is  afterwards  introduced,  that  proviso  is  construed  strictly 
and  takes  no  case  out  of  the  enacting  clause  which  does  not  fall 
fairly  within  its  meaning.  In  short,  a  proviso  carves  special 
exceptions  only  out  of  the  enacting  clause,  and  those  who  set 
up  any  such  exception  must  establish  it  as  being  within  the 
words  as  well  as  within  the  reason  thereof." 

From  these  authorities  it  follows  that  the  defendant,  to  sus- 
tain its  plea,  must  bring  itself  strictly  within  the  letter  as  well 
as  within  the  reason  of  the  proviso  in  order  to  escape  the  penalty 
provided  by  that  Act. —  Tneher,  D.  J.,  p.  476. 

3.  If  an  action  under  the  federal  Hours  of  Service  Act  is  so  tried  by 

court  and  counsel  as  tacitly  to  imply  that  circumstances  not  specifi- 
cally set  out  in  the  answer  are  embraced  within  the  issues,  they 
will  be  treated  by  an  appellate  court  as  though  they  had  been 
set  out  in  the  answer. 
Z7.  S.  V.  Kansas  City  SoutJiem  Ry.  Co.,  202  Fed.,  828. 

Circuit  Court  of  Appeals,  8th  Circuit,  January  24,  1913. 
If  reliance  was  placed  upon  defects  in  the  engine,  such  as  a 
broken  shaker  rod  and  leaky  flues,  these  defects  should  have 
been  pleaded.  The  Government  should  have  been  advised  of 
the  defenses  it  would  be  required  to  meet.  The  answer  contains 
no  such  specific  averments,  and  a  general  denial  was  insufficient 
for  the  purpose.  It  is  contended,  however,  that  court  and  coun- 
sel, by  common  consent,  tried  the  case  as  though  such  alleged 
defects  were  embraced  within  the  issues,  and  it  is  probably  true 
that  the  record  does  not  disclose  any  sufficiently  specific  objec- 
tion to  their  consideration;  therefore  they  will  be  treated  as 
though  set  out  in  the  answer. —  Van  Valkenhurgfi,  D.  J.,  p.  832. 

4.  The  allegation  in  the  plaintiff's  declaration  that  a  violation  of  the 

federal  Safety  Appliance  Acts  occurred  "on  or  about"  a  certain 
date  is  not  fatally  defective  for  want  of  deflniteness. 
Atlantic  Coast  Line  R.  Co.  v.  U.  S.,168  Fed.,  175. 

Circuit  Court  of  Appeals,  4th  Circuit,  March  1,  1909. 

The  court  below,  in  passing  upon  this  point,  [the  sufficiency 
of  an  allegation  that  the  violation  occurred  *'on  or  about"  a  par- 
ticular date]  held  that  a  pleading  in  a  civil  suit  need  not  be  as 
specific  in  alleging  dates  as  in  a  criminal  proceeding  where  prose- 
cution is  by  indictment.     [Sustained.] — Pritchard,  C.  J.,  p.  176. 


214  PLEADING  PRACTICE, AND  PROCEDURE. 


Louisville  (&   N.  R.  Co.  v.   TJ.  S.,  186  Fed.,  280. 

Circuit  Court  of  Appeals,  6th  Circuit,  March  3,  1911. 

The  first  of  these  grounds  taken  by  the  demurrer  raises  a 
question  of  pleading.  It  is  whether  the  paragraph  commencing 
^Plaintiff  further  alleges  that  on  or  about  said  date  defendant 
hauled  said  car, "  etc.,  is  sufiiciently  connected  with  the  preceding 
paragraph  in  time,  place,  and  circumstances  to  show  that  it  refers 
to  the  same  occurrence  so  as  to  be  a  more  specific  allegation  of 
what  had  in  part  already  been  stated.  It  must  be  admitted  to  be 
loose  and  rather  inconsequential  pleading.  But  a  majority  of 
the  court  is  inclined  to  hold  that  the  pleader  intended  to  signify 
that  the  later  averments  were  of  the  identical  matter  stated  in  the 
former  and  that  this  was  made  sufficiently  apparent. — Severens, 
C,  J.,  p.  282. 

U.  S,  V.  Atlantic  Coast  Line  R,  Co.,  153  Fed.,  918. 

6.  In  a  penal  action  based  npon  the  defective  condition  of  a  conpler, 
the  allegation  in  the  plaintiff's  declaration  that  the  car  in 
question  was  "not  equipped  with  couplers  coupling  automati- 
cally by  impact,  etc.,"  is  a  conclusion  or  statement  of  result,  and 
not  a  substantive  charge. 
U.  8.  V.  lUinois  Central  R.  Co.,  177  Fed.,  801. 

Circuit  Court  of  Appeals,  6th  Circuit,  April  5,  1910. 

The  specific  violation  charged  in  the  declaration  is  that  the 
car  in  question  was  hauled  in  interstate  traffic  ^^when  the  coupling 
and  uncoupling  apparatus  on  the  ^A'  end  of  said  car  was  inoperor- 
tive,  the  said  lumoer  on  said  car,  M,  J.  <x  K.  C.  No.  2/^2,  being 
loaded  thereon  so  as  to  project  out  over  the  uncoupling  lever  on  said 
end  of  said  car,  and  prevented  the  operation  of  the  uncoupling  lever 
of  said  coupler,  thus  necessitating  a  man  or  men  going  between  the 
ends  of  the  said  car  2J^  and  the  car  adjacent  to  couple  or  uncouple 
them,  and  when  said  car  242,  as  above  described,  was  not  equipped 
with  couplers  coupling  automatically  by  impact,  and  which  could 
be  uncoupled  without  the  necessity  of  a  man  or  men  going  between 
the  ends  of  the  cars,  as  required  by  section  2  of  the  Safety 
Appliance  Act,  etc." 

The  clause  following  the  italicized  portion  of  the  allegation 
quoted  from  the  declaration  is  not  relied  upon  by  the  Govern- 
ment as  a  substantive  charge,  but  was  inserted  rather  by  way  of 
conclusion  or  statement  of  result,  there  being  no  claim  on  the 
part  of  the  Government  that  the  coupling  and  imcoupHng  appara- 
tus was  inherently  defective,  the  charge  being  simply  that  the 
coupling  and  uncoupling  apparatus  was  rendered  wholly  inopera- 
tive by  reason  of  the  method  of  loading  the  lumber  on  the  car. — 
Knappen,  C.  J.,  pp.  801-802. 

6.  Actions  under  the  federal  Safety  Appliance  and  Hours  of  Service 
Acts  being  civil,  if  the  Government  in  any  case  establishes  by 
uncontradicted  evidence  the  facts  recited  in  the  declaration,  it 
is  entitled  to  a  directed  verdict: 
St.  Louis,  S.  W.  Ry.  Co.  v.  U.  S.,  183  Fed.,  770. 

Circuit  Court  of  Appeals,  5th  Circuit,  January  10,  1911. 
On  reason  and  weight  of  authority  it  is  considered  that 
actions  to  recover  the  statutory  penalties  for  violations  of  the 


GENERAL  RULES.  215 


Safety  Appliance  law  are  so  far  civil  in  their  nature  that  the 
strict  construction  applicable  in  criminal  proceedings  is  not 
required,  and  the  United  States  may  recover  upon  the  prepon- 
derance of  evidence,  and  the  trial  judge  may  in  proper  cases 
direct  a  verdict. — Per  Curiam,  p.  771. 

V,  S.  V.  Atlantic  Coast  Line  R.  Co.,  182  Fed.,  284. 

District  Court,  Southern  District  of  Georgia,  May  14,  1910. 
The  law  on  this  subject,  as  announced  by  Mr.  Justice  Harlan, 
in  stating  the  conclusions  of  the  court  in  Hepner  v.  27.  iS.,  213 
U.  S.,  on  page  114,  after  summing  up  all  the  authorities,  is:  "If, 
in  a  civil  action  to  recover  a  penalty,  the  defendant  is  entitled, 
the  evidence  being  undisputed,  to  nave  a  peremptory  instruc- 
tion in  his  behalf,  it  is  difficult  to  perceive  why  the  Government 
is  not  entitled  to  a  peremptory  instruction  in  its  fa\ror,  where 
the  undisputed  testimony  left  no  facts  for  the  jury  to  consider, 
but  established,  beyond  all  question  and  as  matter  of  law,  its 
right  to  judgment  for  the  prescribed  penalty." 

This  is  a  civil  case;  otherwise  there  would  have  been  an 
indictment.  The  reasoning  of  the  Supreme  Court  and  its  con- 
clusion is  controlling  on  my  action. — Speer,  D.  J.,  pp.  284-285. 

U.  S.  V.  Galveston,  H.  cfc  S.  A.  Ry.  Co.,  D.  C,  W.  D.  Texas,  Jan. 
12,  1912,  Foster,  D.  J.  [unreported];  U.  S.  v.  Missouri,  K.  cfe 
T.  Ry.  Co.  of  Texas,  D.  C,  E.  D.  Texas,  May  30,  1912,  Kussell, 
D.  J.  [unreported];  TJ.  8.  v.  Great  Northern  Ry.  Co.,  D.  C,  D. 
Minnesota,  June  4,  1913,  Willard,  D.  J.  [unreported].  See  also 
U.  S.  V.  Trinity  cfc  B.  V.  Ry.  Co.,  211  Fed.,  448;  Morris  v.  St. 
Louis  S.  W.  Ry.  Co.  of  Texas,  158  S.  W.,  1055;  Schweig  v.  Chicago, 
M.  cfc  St.  P.  Ry.  Co.,  205  Fed.,  96.  .;  .%tSiHl 

(a).  And  the  refusal  of  tlie  trial  judge,  in  a  proper  case,  to  direct  a 

verdict  for  the  Government  is  a  reversible  error; 
V.  S.  V.  Trinity  &  B.  V.  Ry.  Co.,  211  Fed.,  448. 

-(b).  But  a  directed  verdict  is  permissible  only  when  all  reasonable 
men  would  deduce  the  same  conclusions  from  the  facts  which 
condition  the  issue. 
V.  S.  V.  Kansas  City  Southern  Ry.  Co.,  202  Fed.,  828. 

Circuit  Court  of  Aj)peals,  8th  Circuit,  January  24,  1913. 

The  rule  of  law  is  well  settled  that  it  is  only  when  all  rea- 
sonable men,  in  the  exercise  of  a  fair  and  impartial  judgment, 
would  draw  the  same  conclusions  from  the  facts  which  condition 
the  issue,  that  it  is  the  duty  of  the  court  to  withdraw  that 
question  from  the  jury. —  Van  ValJcenhurgh,  D.  J.,  p.  835. 
U.  S.  V.  Kansas  City  Southern  Ry.  Co.,  189  Fed.,  471. 

(c).  Where  the  judgment  of  a  trial  court  is  reversed,  on  appeal,  for 
error  in  denying  a  motion  for  a  directed  verdict  at  the  close 
of  the  evidence,  such  decision,  even  though  not  unanimous,  is  the 
law  of  the  case  on  retrial,  and  requires  the  granting  of  a  similar 
motion,  unless  the  evidence  is  such  as  to  change  the  state  of 
facts  to  which  the  law  in  the  previous  case  applied,  or  until  the 
decision  of  the  Circuit  Court  of  Appeals  is  reversed  by  the  Su- 
preme Court. 

Toledo,  St.  L.  <&   W.  R.  Co.  v.  Sellers,  184  Fed.,  885. 


216  PLEADING,  PEACTICE,  AND  PROCEDURE. 


7.  Where  a  party  submits    to   the    court    for   instruction  a  charge 

defectively  prepared,  it  is  the  duty  of  the' court  to  correct  the 
defect  and  submit  the  issue,  and  failure  so  to  do  may  be  assigned 
as  error  [Texas  Practice] : 

Galveston,  H.  &  S.  A.  Ry  Co  v.  KuHz,  147  S.  W.,  658. 

— (a).  But  where  the  court  refuses  a  specific  prayer,  and  then  in  its 
general  charge  or  in  another  prayer  covers  the  point  in  question, 
even  though  the  court  may  have  erred  in  refusing  the  prayer,  such 
error  is  not  prejudicial,  and  is  therefore  harmless. 
■  Norfolk  &  W.  Ry.  Co.  v.  O.  S.,  191  Fed.,  302;  Grand  Trunk  Western 
Ry.  Co.  V.  Lindsay,  201  Fed.,  836.  See  also  Grand  Trunk  West- 
ern Ry.  Co.  v.  Poole,  93  N.  E.,  26. 

8.  A  petition  for  removal  will  be  sustained  if  the  pleadings  are  amended 

so  as  to  transform  a  non-removable  cause  into  a  removable  one. 
MyHle  v.  Nevada,  C.  <&  0.  Ry.  Co.,  137  Fed.,  193. 
Circuit  Court,  District  of  Nevada,  April  22,  1905. 

In  this  petition  it  is  alleged  that  the  amended  complaint 
involves  the  question  of  the  liability  of  petitioner,  under  the  pro- 
visions of  the  Constitution  of  the  United  States,  and  the  Act  of 
Congress  entitled  '  'An  Act  to  promote  the  safety  of  employees, 
etc.,    *    *    *." 

The  law  is  now  well  settled  that  an  amendment  to  a  com- 
plaint in  the  state  court  which  transforms  a  nonremovable  case 
mto  a  removable  one  allows  the  suit  to  be  removed  into  the  Cir- 
cuit Court,  if  the  defendant  acts  promptly. — Hawley,  D.  J., 
.      pp.  194-195. 

St,  Louis,  L  M.  <&  S.  Ry.  Co.  v.  Neal,  98  S.  W.,  958. 
Supreme  Court  of  Arkansas,  November  19,  1906. 

When  an  amendment  transforms  a  nonremovable  case  into 
a  removable  one,  then  the  defendant  may  have  and  sustain  a 
second  petition  for  removal  [Moon  on  Removal  of  Causes,  157; 
Powers  V.  C  <&  0.  Ry.  Co.,  169  U.  S.,  92].— Hill,  Ch.  J.,  p.  963. 
NichoU  V.  Chesapeake  &  0.  Ry,  Co.  et  al.,  105  S.  W.,  481. 
Court  of  Appeals  of  Kentucky,  November  22,  1907. 

Under  the  light  of  the  foregoing  authorities  it  is  impossible 
to  avoid  the  conclusion  that  the  defendant  was  entitled  to  remove 
the  case  to  the  federal  court  after  the  filiug  of  the  amended 
petition  pleading  the  federal  statute.  It  may  be  that  plaintiff 
could  have  made  out  a  case  of  actionable  negligence  against  the 
defendants  under  common-law  principles;  but  if  it  had  appeared 
that  under  the  evidence  adduced,  the  plaintiff,  under  common- 
law  principles,  assumed  the  risk  of  the  accident  by  which  he  was 
hurt,  then  his  ri^ht  to  recover,  if  he  had  such  right,  would  rest 
upon  the  operation  of  the  federal  statute,  which  relieved  him 
from  the  assumption  of  the  risk  in  question.  So  that  the  case 
seems  to  fall  necessarily  in  the  category  of  cases  which  arise  under 
a  law  of  the  United  States,  and,  this  being  true,  was  removable 
by  defendants  under  the  federal  statute  regulating  the  jurisdic- 
tion of  the  United  States  Circuit  Courts  and  the  removal  of 
actions  from  the  state  to  the  federal  courts. — Barker,  J,,  p.  484. 


GENERAL  RULES.  217 


9.  The  amendment   of   a   petition   in  sucli    a    manner    as    to   bring 

within  the  federal  Safety  Appliance  Acts  a  case  not  otherwise 
within  their  purview  is  not  merely  a  restatement  or  a  statement 
in  a  different  form  of  the  same  cause  of  action,  but  is  the  aver- 
ment of  a  statutory  cause  of  action  in  which  the  liability  is 
greater  than  in  an  action  at  the  common  law. 
Allen  V.  Tuscarora  Valley  R.  Co.,  78  Atl.,  34. 

10.  Where  the  trial  court  grants  a  compulsory  nonsuit  on  the  ground 
of  insufficient  evidence  to  sustain  a  verdict  on  any  count,  its  action 
will  not  be  reversed  by  an  appellate  court  if  the  record  is  in  such 
condition  as  to  render  it  impossible  to  determine  what  evidence 
applies  to  each  specific  count. 

U.  S.  V.  Baltimore  <&  0.  R,  Co.,  185  Fed.,  486. 

11.  Court  of  Appeals  decisions  on  a  given  question  are  entitled  to  greater 
weight  than  decisions  of  a  District  Court. 

:  Central  Vermont  Ry,  Co.  v.  TJ.  S.,  205  Fed.,  40. 

Circuit  Court  of  Appeals,  1st  Circuit,  May  13,  1913. 

U.  S.  Y.  Montpetier  &  W.  R.  R.  Co.,  175  Fed.,  874,  decided  in 
the  District  Court  for  Vermont,  related  to  an  engine  having  no 
coupHng  lever,  and  its  authority,  if  it  decides  anything  to  the 
contrary  of  the  above  [FaSasA  R.  Co.  v.  TJ.  S.,  168  Fed.,  1  (C.  C. 
A.-7th  Circuit);  U.  S.  v.  Denver  &  R.  G.  R.  Co.,  163  Fed.,  519, 
(C.  C.  A.-8th  Circuit);  Norfolk  cfc  W.  Ry.  Co.  v.  U.  S.,  177  Fed., 
623  (C.  C.  A.-4th  Circuit)]  must  yield  to  that  of  the  Court  of 
Appeals  decisions  above  cited. — Dodge,  C.  J.,  p.  41. 

12.  A  suit  for  specific  performance  of  a  contract  to  locate  and  main- 
tain a  railroad  division  terminal  at  a  point  where  its  continuance 
would  impose  a  burden  upon  interstate  commerce  or  preclude  the 
carrier's  observance  of  the  federal  Hours  of  Service  Act  is 
unsustainable. 

.  Kansas  City  SoutJiem  Ry.  Co.  v.  Quigley,  181  Fed.,  190. 

13.  In  a  joint  action  under  the  federal  Safety  Appliance  Acts,  judg- 
ment may  be  rendered  against  either  or  both  of  the  defendants 
involved. 

U.  S.  y.  Chicago,  P.  &  St  L.  Ry,  Co.  et  al.,  143  Fed.,  353. 

District  Court,  Southern  District  of  Illinois,  January  19,  1906. 

Under  the  case  of  Chaffee  v.  U.  8.,  18  Wall.,  516-538, 1  am  of 

opinion  that  judgment  may  be  rendered  against  both  or  either  of 

the  companies  under  these  declarations. — Sanborn,  D.  /.,  p.  355. 

14.  Courts  will  take  cognizance  of  the  facts  and  law  of  any  instant 
case  alone,  and  expressions  of  opinion  as  to  the  application  of  the 
law  to  facts  essentially  different  are  not  controlling  in  another  case. 

V.  S.  V.  niinois  Central  R.  Co.,  170  Fed.,  542. 

Circuit  Court  of  Appeals,  6th  Circuit,  March  27,  1909. 

The  facts  and  law  of  the  instant  case  only  are  in  the  eye  and 
thought  of  the  court.  But  expressions  of  opinion  as  to  how 
the  law  would  be  upon  facts  essentially  different  from  those  in 
issue  are  not  controlling  in  another  case  when  such  different 
facts  and  issues  are  presented.     These  rules  have  been  declared 


218  PLEADING,  PRACTICE,  AND  PEOCEDUEE. 


on  many  occasions  by  the  Supreme  Court  itself,  and  no  appellate 
tribunal  has  more  strongly  emphasized  them.  [Cohens  v.  Fir- 
ginia,  6  Wheat.,  264,  399;  Northern  Bank  v.  Porter  Tp.,  110  U.  S., 
608;  Plumley  v.  Massachusetts,  155  U.  S.,  461,  471,  474;  Hans  v. 
Louisiana,  134  U.  S.,  1;  TJ.  S.  v.  Wong  Kim  Aric,  169  U.  S., 
649,  679;  Harrivfian  v.  Northern  Securities  Co.,  197  U.  S.,  244; 
Do'imis  V.  Bidwell,  182  U.  S.,  25Sl—Severen8,  C.  J.,  p.  547. 

15.  The  Supreme  Court  may  consider  questions  not  specifically  men- 
tioned in  the  court  below  if  such  consideration  is  necessary  to  the 
determination  of  the  questions  actually  presented. 

Schlemmer  v.  Buffalo  R.  <&  P.  By.  Co.,  205  U.  S.,  1. 
Supreme  Court,  March  4,  1907. 

We  certainly  do  not  mean  to  qualify  or  limit  the  rule  that, 
for  this  court  to  entertain  juiisdiction  of  a  writ  of  error  to  a  state 
court,  it  must  appear  affirmatively  that  the  state  court  could  not 
have  reached  its  judgment  without  tacitly,  if  not  expressly, 
deciding  the  federal  matter.  [Bachtel  v.  Wilson,  204  U.  S.,  36.] 
But  on  the  other  hand,  if  the  question  is  duly  raised  and  the 
judgment  necessarily,  or  by  what  appeai-s  in  fact,  involves  such 
a  decision,  then  ims  court  will  take  jurisdiction,  although  the 
opinion  below  says  nothing  about  it.  [Kaukauna  Water  Power 
(Jo.  V.  Oreen  Bay  &  Miss.  Canal  Co.,  142  U.  S.,  254.] — Holmes, 
Justice,  p.  11. 

16.  The  Supreme  Court  of  the  District  of  Columbia  has  jurisdiction 
of  cases  under  the  federal  Safety  Appliance  and  Hours  of  Service 
Acts. 

TJ.  S.  V.  Baltimore  &  0.  R.  Co.,  26  App.,  D.  C,  581. 

Supreme  Court  of  the  District  of  Columbia,  February  6,  1906. 

It  would  seem,  therefore,  that  when  Congress,  in  section  6 
of  this  statute,  iiii posed  a  penalty  for  every  violation  of  these 
Safety  Appliance  Statutes,  and  directed  that  the  same  should  be 
recovered  in  a  suit  to  be  brought  in  the  District  Court  of  the 
United  States  ''having  jurisdiction  in  the  locality"  where  such 
violation  shall  have  been  committed.  Congress  intended  to  include 
the  court  of  the  United  States  in  the  District  of  Columbia,  which 
was  the  proper  tribunal  to  take  jurisdiction  in  this  locality  of 
such  a  suit  for  a  penalty  incurred  by  reason  of  a  violation  of  this 
statute  in  this  District.     *     *     * 

Therefore,  when  Congress  extended  the  Safety  Appliance 
Acts  to  the  District  of  Columbia,  Congress  knew  that  the  special 
term  described  as  the  Circuit  Court  of  the  District  of  Columbia 
was  the  court  to  take  jurisdiction  of  a  suit  for  the  penalty  pre- 
scribed in  section  6,  and  the  United  States  district  attorney 
properly  brought  the  suit  in  that  court  as  the  court  ''having 
jurisdiction  in  the  locality  where  such  violation"  had  been 
committed.    *    *    * 

We  are  of  opinion,  therefore,  that  such  power  to  try  com- 
mon-law civil  actions  such  as  this  suit,  for  this  penalty.  Congress 
intended  should  be  tried  in  the  circuit  court  special  term  of  the 
Supreme  Court  of  the  District  of  Columbia. — McComas,  J.,  pp. 
586-587,  588-589. 


GENERAL  RULES.  219 


17.  Courts  will  take  judicial  notice  of  the  federal  Safety  Appliance 

and  Hours  of  Service  Acts: 
See  New  England  R.  Go.  v.  Convoy,  175  U.  S.,  323,  342.     See  also 

Kansas  City,  M.  &  B.  R.  Co.  v.  Flippo,  35  So.,  457. 
—(a).  And    of    the  Orders  of  the  Interstate  Commerce    Commission 

made  in  the  furtherance  thereof. 
CaTia  V.   U.  S.,  152  U.  S.,  211,  222.     [Citing  U.  S.  v.  TeschmaTcer, 

22  How.,   392;  Romero  v.    TJ.  S.,   1   Wall.,   721;  Armstrong  v. 

U.  S.,  13  Wall.,  154;  Jones  v.   TJ.  S.,  137  U.  S.,  202;  KnigTit  v. 

V.  S.  Land  Ass'n.,  142  U.  S.,  161;  Jenkins  v.  CoUard,  145  U.  S., 

546.] 


Part  VI.  ACTIONS  FOR  PERSONAL  INJURY. 

GENEBAL  RULES  OF  LAW  APPLIED  IN  CASES  UNDER  THE  SAFETY 
APPLIANCE  AND  HOURS  OF  SERVICE  ACTS. 

1.  In  an  action  for  personal  injury  based  upon  a  violation  of  the  federal  Safety 
Appliance  Acts,  the  defense  of  assumption  of  risk  is  abrogated,  221; 

(a)  And  assumption  of  risk  is  not  to  be  charged  against  a  plaintiff  under  the 
the  name  of  contributory  negligence,  223. 

2.  "Assumption  of  risk"  defined  and  distinguished  from  "contributory 
negligence,"  223; 

(a)  Assumption  of  risk  presupposes  knowledge  of,  or  the  means  of  knowing, 
the  manner  in  which  the  work  involved  is  done,  224; 

(b)  Working  on  defective  cars  does  not  constitute  assumption  of  risk,  224; 

(c)  An  employee's  continuance  in  the  service  of  a  carrier  after  the  existence 
of  particular  defects  is  brought  to  his  knowledge  does  not  constitute  assump> 
tion  of  risk,  225. 

3.  In  an  action  for  personal  injury,  the  burden  of  proving  negligence  is  on  the 
plaintiff,  226. 

4.  The  violation  by  a  carrier  of  a  statutory  duty  resulting  in  the  injury  of  an  em- 
ployee is  negligence,  per  se,  226; 

(a)  And  requiring  an  employee  to  use  defective  equipment  is  negligence  on 
the  part  of  the  carrier,  which  becomes  actionable  in  event  of  injury  to  such 
employee  resulting  therefrom,  226; 

(b)  But  the  temporary  substitution  by  a  carrier  of  a  "stub  pilot"  for  the  long 
pilot  previously  used,  in  order  to  install  an  automatic  coupler,  does  not  con- 
stitute actionable  negligence,  228. 

6.  In  an  action  for  personal  injury  based  upon  a  violation  of  the  federal  Safety 
Appliance  Acts  the  defense  of  contributory  negligence  is  unimpaired,  228 ; 
(a)  But  the  burden  of  proving  contributory  negligence  is  on  the  defendant, 
229; 

6.  If  an  employee,  in  the  course  of  his  employment,  enters  between  cars  or 
steps  between  the  rails  in  order  to  examine  or  to  operate  a  coupler  and  is 
thereby  injured,  he  is  not  chargeable,  for  this  reason  alone,  with  contributory 
negligence  so  as  to  preclude  his  recovery  of  damages,  229; 

7.  In  an  action  for  personal  injury  the  question  of  contributory  negligence  is  or- 
dinarily one  for  the  jury,  230; 

(a)  Knowledge  and  experience  in  the  work  performed  are  proper  elements  to 
be  considered  in  determining  what  is  contributory  negligence,  230. 

8.  In  an  action  for  personal  injury,  the  question  of  proximate  cause  ordinarily 
is  one  for  the  jury,  230; 

(a)  But  where  the  facts  are  undisputed,  and  are  such  that  all  reasonable  minds 
must  reach  the  same  conclusion,  the  question  of  the  proximate  cause  of  an 
injury  is  one  of  law,  230. 

9.  In  order  to  bring  an  action  for  personal  injury  within  the  purview  of  the  federal 
Hours  of  Service  Act  or  the  federal  Safety  Appliance  Acts,  it  is  necessary  that  some 
causal  relation  or  connection  be  established  between  a  violation  of  the  statute 
and  the  injury* sustained,  231; 

(a)  But  if  all  the  facts  necessary  to  bring  an  action  for  personal  injury  within  the 
purview  of  either  of  the  Acts  are  stated  in  the  declaration,  it  is  immaterial 
that  the  statute  itself  is  not  described  in  terms  therein,  281. 
220 


aENEEAL  BULES  OF  LAW.  221 


10.  Irrespective  of  any  statute,  it  is  the  duty  of  carriers  to  provide  reasonably  safe 
appliances  and  tools  and  to  promulgate  and  enforce  efficient  rules  in  the  further- 
ance of  the  safety  of  employees,  232 ; 

(a)  But  the  mere  promulgation  of  such  rules  without  their  enforcement  will 
not  protect  a  carrier  from  liability  under  a  mandatory  statute,  232. 

11.  Where  one  of  the  grounds  in  a  motion  for  a  new  trial  is  that  the  amount  of  the 
verdict  is  excessive,  and  the  trial  court  has  denied  such  motion,  an  appellate 
court,  in  passing  upon  an  assignment  of  error  based  thereon,  will  not  disturb 
the  verdict  on  such  grounds,  unless  the  verdict  is  such  as  to  shock  its  judicial 
conscience  or  as  to  indicate  that  the  jury  must  have  been  unduly  influenced  in 
some  way,  or  swayed  by  bias,  prejudice,  or  passion,  233. 

12.  In  an  action  for  personal  injuries  based  upon  a  violation  of  the  federal  Safety 
Appliance  Acts,  evidence  of  such  injury  sustained  by  reason  of  the  defendant's 
use  in  interstate  commerce  of  cars  so  defective  as  to  be  incapable  of  being 
coupled  without  some  one  going  between  them  establishes  a  prima  facie  case, 
even  though  the  precise  nature  of  the  defect  is  not  disclosed,  233. 

13.  Where  the  declaration  in  an  action  for  personal  injuries  alleges  that  defendant 
was  at  the  time  of  the  accident  engaged  in  operating  a  train  in  interstate  com- 
merce, and  that  plaintiff  was  employed  by  defendant  in  such  operation,  it  will 
be  inferred,  after  verdict,  that  the  train  was  moved  by  defendant,  although  not 
so  alleged  in  terms,  233. 

14.  The  Acts  are  intended,  not  to  increase  the  difficulty  of  securing  compensation 
for  injuries  sustained  by  reason  of  defective  appliances,  but  to  decrease  the 
number  of  instances  in  which  such  injuries  occur,  233. 

1.  In  an  action  for  personal  injury  based  upon  a  violation  of  the  fed- 
eral Safety  Appliance  Acts,  the  defense  of  assumption  of  risk  is 
abrogated : 

That  any  employee  of  any  such  common  carrier  who  may  be 
injured  by  any  locomotive,  car,  or  train  in  use  contrary  to  the  pro- 
vision of  this  Act  shall  not  be  deemed  thereby  to  have  assumed  the 
risk  thereby  occasioned,  although  continuing  in  the  employment  of 
such  carrier  after  the  unlawful  use  of  such  locomotive,  car,  or  train 
had  been  brought  to  his  knowledge.— 5ec.  8,  Act  March  2,  1893  [27  Stat,  at 
L.,  531,  532], 

*  *  *  and  such  movement  or  hauling  of  such  car  [to  the  nearest 
available  repair  point]  shall  be  at  the  sole  risk  of  the  carrier,  and  nothing 
in  this  section  shall  be  construed  to  relieve  such  carrier  from  liability 
in  any  remedial  action  for  the  death  or  injury  of  any  railroad  employee 
caused  to  such  employee  by  reason  of  or  in  connection  with  the  move- 
ment or  hauling  of  such  car  with  equipment  which  is  defective  or 
insecure  or  which  is  not  maintained  in  accordance  with  the  require- 
ments of  this  Act  and  the  other  Acts  herein  referred  to;  *  *  *. — 
Sec.  4,  Act  April  14,  1910  [36  Stat,  at  L.,  298,  299.] 

Schlemmer  v.  Buffalo,  R.  cfc  P.  Ry.  Co.,  220  U.  S.,  590. 
Siipreme  Court,  May  15,  1911. 
in  the  present  case,  the  statute  of  Congress  expressly  provides 
that  the  employee  shall  not  be  deemed  to  have  assumed  the  risk  of 
injury  if  such  is  occasioned  by  his  continuing  in  the  employ  of 
the  carrier  after  the  unlawful  use  of  the  car  or  train  in  the  failure 
to  provide  automatic  couplers  has  been  brought  to  his  knowl- 
edge.— Day,  Justice,  p.  596. 


222  ACTIONS  FOR  PERSONAL  INJURY. 


Atlantic  Coast  Line  R.  Co.  v.  TJ.  S.,  168  Fed.,  175. 

Circuit  Court  of  Appeals,  4th  Circuit,  March  1,  1909. 

That  the  effect  of  section  8  is  to  change  the  relation  of  master 
and  servant  by  abrogating  the  doctrine  of  assumption  of  risk,  in 
so  far  as  it  relates  to  this  class  of  cases,  is,  we  think,  well  settled. — 
PriUhard,  C.  J.,  p.  180. 

Texas  <&  Pacific  Ry.  Co.  v.  Swearingen,  122  Fed.,  193. 
Circuit  Court  of  Appeals,  5th  Circuit,  April  7,  1903. 

The  passage  by  the  Congress  of  the  United  States  of  the  Act 
to  promote  the  safety  of  travelers  and  employees  upon  railroads, 
etc.,  *  *  *  clearly  indicates  the  propriety  and  necessity  of 
modifying  the  terms  and  limiting  the  application  of  the  rules 
theretofore  announced  by  courts  of  the  highest  authority  with 
reference  to  the  doctrine  of  assumed  risks. —  McCormiclc,  C.  J., 
p.  205. 

St.  Louis  c&  8.  F,  R.  Co.  v.  Delk,  158  Fed.,  931. 

Circuit  Court  of  Appeals,  6th  Circuit,  March  3,  1908. 

And  section  8  declares  that  the  employee  shall  not  be  deemed 
to  have  assumed  the  risk  occasioned  by  the  failure  of  the  railroad 
company  to  equip  its  cai-s  as  required  by  the  second  section. — 
Severens,  C.  J.,  p.  936. 

St.  Louis  Cordage  Co.  v.  Miller,  126  Fed.,  495. 

Cii-cuit  Court  of  Appeals,  8th  Circuit,  November  12,  1903. 
The  factory  act  of  Missouri  [2  Rev.  Stat.,  1899,  sec.  6433] 
does  not  abolish  the  defense  of  assumption  of  risk  ia  cases  which 
fall  under  its  provisions.  In  this  respect  it  differs  from  the  Act 
of  the  Congress  of  the  United  States  [Act  March  2,  1893,  chap. 
196,  27  Stat,  at  L.,  531,  U.  S.  Comp.  Stat.,  1901,  p.  3174],  which 
requires  cars  engaged  in  intei-state  commerce  to  be  equipped  with 
automatic  couplers.  Congress  in  that  Act  expressly  provided 
that  in  case  the  raihoad  companies  failed  to  comply  with  its  terms 
the  employees  should  not  be  deemed  to  have  assumed  the  risk 
thereby  occasioned. — Sanhorn,  C.  «/.,  p.  509. 

Denver  &  R.  G.  R.  Co.  v.  ArrigU,  129  Fed.,  347;  Plummer  v. 
'  Northern  Pacific  Ry.  Co.,  152  Fed.,  206;  U.  S.  v.  Atlantic  Coast 
Line  R.  Co.,  153  Fed.,  918;  Norfolk  &  W.  Ry.  Co.  v.  Hazelrigg,  184 
Fed.,  828;  Chicago,  R.  I.  <&  P.  Ry.  Co.  v.  Brown,  185  Fed.,  80; 
Nichols  V.  Chesapeake  cfc  0.  Ry.  Co.,  195  Fed.,  913;  Grand  Trunk 
Western  Ry.  Co.  v.  Lindsay,  201  Fed.,  836;  Southern  Ry.  Co.  v. 
Snyder,  205  Fed.,  868;  Coley  v.  North  Carolina  Ry.  Co.,  57  L.  R. 
A.,  817;  iMken  v.  Lake  Shore  &  M.  S.  Ry.  Co.,  94  N.  E.,  175; 
Winkler  v.  Philadelphia  <&  R.  Ry.  Co.,  53  Atl.,  90;  Allen  v.  Tus- 
carora  Valley  R.  Co.,  78  Atl.,  34:  Montgomery  v.  Carolina  <&  N.  W. 
R.  Co.,  80  S.  E.,  83;  Atlantic  Coast  Line  R.  Co.  v.  Whitney,  61  So., 
179;  St.  Louis.  I.  M.  &  8.  Ry.  Co.  v.  Neal,  78  S.  W.,  220;  Galves- 
ton, 11.  cfc  S.  A.  Ry.  Co.  V.  Kurtz,  147  S.  W.,  658;  La  Mere  v. 
Ry.  Trans.  Co.  of  Minneapolis,  145  N.  W.,  1068;  Denver  cfe  R.  G, 
R.  Co.  V.  Gannon,  90  Pac,  853;  Luken  v.  Lake  Shore  cfe  M.  8. 
Ry.  Co.,  154  111.  App.,  550;  Dailey  v.  Southern  Ry.  Co.,  C.  C,  E. 
D.  Tennessee,  Jan.  10,  1911,  Sanford  D.  J,  [unreported].  See 
also  St.  Louis,  I.  M.  <&  S.  Ry.  Co.  v.  McWhirter,  140  S.  W.  672. 


GENERAL  RULES  OF  LAW.  223 


Per  Contra: 

Cleveland,  C.  C.  &  St.  L.  Ry.  Co.  v.  Baher,  91  Fed.,  224;  Johnson  v.  Southern 
Pacific  Co.,  117  Fed.,  462. 

— (a).  And  assumption  of  risk  is  not  to  be  charged  against  a  plaintiff 
under  the  name  of  contributory  negligence. 
Schlemmer  v.  Buffalo,  R.  cfc  P.  Ry.  Co.,  205  U.  S.,  1. 
Supreme  Court,  March  4,  1907. 

The  preliminary  conduct  of  getting  into  the  dangerous 
employment  or  relation  is  said  to  be  accompanied  by  assumption 
of  the  risk.  The  act  more  immediately  leadiag  to  a  specific  acci- 
dent is  called  negligent.  But  ths  difference  between  the  two  is 
one  of  degree  rather  than  of  kind ;  and  when  a  statute  exonerates 
a  servant  from  the  former,  if  at  the  same  time  it  leaves  the  defense 
of  contributory  negligence  still  open  to  the  master,  a  matter  upoD 
which  we  express  no  opinion,  then,  unless  great  care  be  taken, 
the  servant's  rights  will  be  sacrificed  by  simply  charging  him  with 
assumption  of  the  risk  under  another  name. — Holmes,  Justice, 
pp.  12-13. 

Chicago  Junction  Ry.  Co.  v.  King,  169  Fed.,  372. 

Circuit  Court  of  Appeals,  7th  Circuit,  February  3,  1909. 
The  statute  would  be  honored  only  m  its  breach  if  the  same 
facts  that  would  defeat  the  employee  imder  the  common-law  rule 
of  assumed  risk  can  be  used  to  defeat  him  under  the  name  of  con- 
tributory negligence. — Baker,  C.  J.,  p.  377. 
Southern  Pacific  Co.  v.  Allen,  106  S.  W.,  441. 

Court  of  Civil  Appeals  of  Texas,  December  4,  1907. 

If,  in  cases  where  the  same  facts  which  would  make  out  the 
defense  of  assumed  risk  (were  such  defense  not  abolished)  would 
also  constitute  the  defense  of  contributory  negligence,  the  latter 
defense  should  be  allowed  to  prevail,  the  humane  and  beneficent 
purpose  of  Congress  would  in  a  large  number  of  cases  be  rendered 
abortive.  Therefore,  as  a  statute  should  be  so  construed  as  to 
accomplish  its  evident  intention  and  purpose,  we  are  of  the 
opinion  that  the  Act,  in  abolishing  the  defense  of  assumed  risk, 
did  away  with  any  other  defense,  though  of  a  different  name,  which 
would  be  constituted  by  identically  the  same  facts  which  go  to 
establish  that  of  assumed  risk. — Neill,  J.,  p.  446. 
See  also  Grand  Trunk  Western  Ry  Co.  v.  Lindsay,  201  Fed.,  836. 

2.  "Assumption  of  risk"  defined  and  distinguished  from  contributory 
negligence : 
Schlemmer  v.  Buffalo,  R.  c&  P.  Ry.  Co.,  205  U.  S.,  1. 
Supreme  Court,  March  4,  1907. 

Assumption  of  risk  in  this  broad  sense  obviously  shades  into 
negligence  as  commonly  understood.  *  *  *  ^j^q  preliminary 
conduct  of  getting  into  the  dangerous  employment  or  relation  is 
said  to  be  accompanied  by  assumption  of  the  risk.  The  act  more 
immediately  leading  to  a  specific  accident  is  called  negligent. — 
Holmes,  Justice,  p.  12. 
Schlemmer  v.  Buffalo,  R.  &  P.  Ry.  Co.,  220  U.  S.,  590. 
Supreme  Court,  May  15,  1911. 

In  the  absence  of  statute  taking  away  the  defense,  or  such 
obvious  dangers  that  no  ordinarily  prudent  person  would  incur 


224  ACTIONS  FOR  PERSONAL  INJURY. 


them,  an  employee  is  held  to  assume  the  risk  of  the  ordinary 
dangers  of  the  occupation  into  which  he  is  about  to  enter,  and 
also  those  risks  and  dangers  which  are  known,  or  are  so  plainly 
observable  that  the  employee  may  be  presumed  to  know  of  them, 
and  if  he  continues  in  the  master's  employ  without  objection,  he 
takes  upon  himself  the  risk  of  injury  from  such  defects.  Choc- 
taw,  0.  cfc  G,  R.  Co,  V.  McDade,  191  U.  S.,  64,  and  former  cases 
in  this  court  therein  cited. 

Contributory  negligence,  on  the  other  hand,  is  the  omission 
of  the  employee  to  use  those  precautions  for  his  own  safety  which 
ordinary  prudence  requires. — Day,  Justice,  p.  596. 
Norfollc  c&  W.  By.  Co.  v.  Hazelrigg,  170  Fed.,  551. 

-Circuit  Court  of  Appeals,  6th  Circuit,  April  19,  1909. 

The  assumption  of  those  risks  of  the  employment  which  are 
known  to  him,  or  would  be  known  hj  the  exercise  of  common 
intelligence,  is  a  term  of  the  contract  with  his  employer,  and  con- 
tinues to  be  so  from  the  beginning. 

If  a  new  risk  becomes  apparent,  he  may  refuse  to  go  on  until 
it  is  removed.  It  is  not  a  risk  which  he  had  assumed.  If  he  does 
go  on,  he  is  deemed  to  have  assumed  the  new  risk  also,  and  the 
original  contract  is  modified  to  that  extent,  and  the  employer  will 
understand  that  the  employment  is  to  continue  upon  the  new  con- 
ditions. The  Safety  Appliance  Act  ehminates  this  element  of 
assumption  of  risk  from  the  contract  of  emplo j^ment  when  the  risk 
arises  from  the  nonperformance  of  the  duties  imposed  by  the  Act 
upon  the  employer.  Contributory  negligence  is  a  different  matter. 
It  consists  of  mutual  faults,  the  concurrence  of  which  causes  the 
mischief.  In  a  case  like  this  the  fault  of  the  employer  consists 
in  the  creation  of,  or  permitting  the  continuance  of,  a  condition 
of  danger;  the  fault  of  the  emploj^ee  is  that,  seeing  the  dangerous 
condition,  he  does  not  conduct  himself  with  reasonable  prudence 
to  avoid  injury.  His  contributory  negUgence  is  wholly  alien  to 
the  contract  of  employment.  The  contract  is  not  affected  by 
the  circumstance  of  the  accident.  The  latter  is  an  incident  occur- 
ring during  its  execution. — Severens,  G.  J.,  pp.  553-554. 

(a).  Assumption  of  risk  presupposes  knowledge  of,  or  the  means  of  know- 
ing, the  manner  in  which  the  work  involved  is  done : 
Voelker  v.  Chicago,  M.  &  St  P.  Ry.  Co.,  UQ  Fed.,  867. 

Circuit  Court,  Northern  District  of  Iowa,  June  16,  1902. 
When  the  claim  is  made  that  an  employee  has  assumed  the 
risk  caused  hj  the  manner  in  which  the  business  of  the  master 
is  conducted,  it  must  be  shown  that  the  employee  knew,  or  had 
means  of  knowing,  the  manner  in  which  the  work  was  done,  so 
that  the  inference  may  be  fairly  drawn  that  by  continuing  in 
the  employ  of  the  master,  having  knowledge,  or  its  equivalent, 
of  the  risks  to  which  he  would  be  subjected,  he  intended  to 
assume  such  risks. — STiiras,  D.  J.,  p.  875. 

(b).  Working  on  defective  cars  does  not  constitute  assumption  of  risk: 
Chicago,  M.  &  St.  P.  Ry.  Go.  v.  Voellcer,  129  Fed.,  522. 
Circuit  Court  of  Appeals,  8th  Circuit,  March  26,  1904. 

Of  this  evidence  it  is  sufficient  to  say  that,  working  under 
such  circumstances  with  a  <^ar  in  use  contrary  to  the  congres- 


GENERAL  KULES  OF  LAW.  225 


sional  Act  does  not,  in  the  presence  of  section  8,  amount  to  an 
assumption  of  the  risk  arising  therefrom,  and  the  court  very 
properly  instructed  the  jury  to  that  effect. —  Van  Devanter,  G.  J., 
p.  530. 
(c).  An  employee's  continuance,  in  the  service  of  a  carrier  after  the 
existence  of  a  particular  defect  is  brought  to  his  knowledge  does 
not  constitute  assumption  of  risk. 

U.  S.  V.  Baltimore  db  0.  R.  Co.,  170  Fed.,  456. 

District  Court,  Western  District  of  Pennsylvania,  May  17, 1909. 
There  is  another  phase  of  the  Act  to  which  it  is  perhaps  not 
necessary  to  call  your  attention  here— that  is,  that  a  railway 
employee  does  not  assume  the  risks  occasioned  by  continuing 
in  the  employ  of  a  railroad  company  after  knowledge  of  defects 
on  the  cars  or  the  failure  of  the  railroad  company  to  keep  its 
cars  equipped  as  provided  by  the  Act.  This  law  changed  the 
common  law  with  respect  to  that. — Orr,  D.  J.,  p.  458. 

Greenlee  v.  Southern  By.  6^.,  30  S.  E.,  115. 

Supreme  Court  of  North  Carolina,  May  26,  1898. 

Congress  has  enacted  that  self-couplers  should  be  used. 
For  their  lack,  this  plaintiff  was  injured.  It  is  true  the  defend- 
ant replies  that  the  plaintiff  remained  in  its  service  knowing  it 
did  not  have  self -couplers.  If  that  were  a  defense,  no  railroad 
company  would  ever  be  liable  for  failure  to  put  in  life-saving 
devices,  and  the  need  of  bread  would  force  employees  to  con- 
tinue the  annual  sacrifice  of  thousands  of  men.  But  this  is  not 
the  doctrine  of  ' 'assumption  of  risk."  That  is  a  more  reasonable 
doctrine,  and  is  merely  that  when  a  particular  machine  is  defec- 
tive or  injured,  and  the  employee  knowing  it  continues  to  use 
it,  he  assumes  the  risk.  That  doctrine  has  no  application  where 
the  law  requires  the  adoption  ot  new  devices  to  save  life  or  limb 
(as  self -couplers),  and  the  employee,  either  ignorant  of  that 
fact  or  expecting  daily  compliance  with  the  law,  continues  in 
service  with  the  appliances  formerly  in  use. —  GlarJc,  J.,  p.  116. 

Winkler  v.  PUladelpUa  cfe  R.  Ry.  Co.,  53  Atl.,  90. 
Superior  Court  of  Delaware,  Jure  10,  1902. 

The  law  manifestly  conten^plates  that  the  car  shall  be  so 
equipped  that  the  coupling  shall  actually  be  made  automatically 
aTid  if  not  so  equipped  the  plaintiff  did  not  assume  the  risk  arising 
therefrom,  even  though  he  continued  in  the  employment  of  the 
compa?iy  after  such  unlawful  use  of  the  cars  had  come  to  his 
knowledge. — Lore,  C7i.  J.,  p.  92. 

PUladelpUa  &  R.  Ry.  Co.  v.  Winkler,  56  Atl.,  112. 
Supren-e  Court  of  Delaware,  Jure  19,  1903. 

Applyi^^g  to  this  case  the  pri7i(  iple  thus  announced,  we  are 
of  the  opinion  that  the  court  below  correctly  charged  that 
"The  law  manifestly  contemplates  that  the  car  shall  be  so 
equipped  that  the  coupUng  shall  actually  be  made  automatically; 
if  not  so  equipped  the  plaintiff  did  not  assume  the  risk  arising 
therefrom,  even  though  he  continued  in  the  employment  of  the 
company  after  such  unlawful  use  of  the  cars  had  come  to  his 
knowledge." — Boyce,  J.,  p.  114. 

But  see  CMcago,  M.  &  St.  P.  Ry.  Co.  v.  Voelker,  129  Fed.,  522. 
50611—15 15 


226  ACTIONS  FOR  PERSONAL  INJTTRY. 


3.  In  an  action  for  personal  injury,  the  burden  of  proving  negligence 

is  on  the  plaintiff. 
Winkler  v.  Philadelphia  dh  R.  Ry.  Co.,  53  Atl.,  90. 
Superior  Court  of  Delaware,  June  10,  1902. 

This  action  is  based  upon  the  negligence  of  the  defendant 
,      company.     Such  negligence  is  never  presumed,  but  must  be 
proved,  to  entitle  the  plaintiff  to  a  verdict.     The  burden  of 
proving  such  negligence  is  upon  the  plaintiff. — Lore,  Oh.  J.,  pp. 
91-92. 
Philadelphia  cfc  R.  Ry.  Co.  v.  Winkler,  56  Atl.,  112. 
Supreme  Court  of  Delaware,  June  19,  1903. 

It  was  claimed  by  the  plaintiff  that  at  the  time  of  the  acci- 
dent he  was  engaged  in  moving  interstate  traffic  for  the  defend- 
ant company  with  an  engine  and  tender  not  equipped  according 
to  the  statutory  requirement.  The  burden  of  proof  was  upon 
him  to  show  this. — Boyce,  «/.,  p.  114. 

4.  The  violation  by  a  carrier  of  a  statutory  duty  resulting  in  the 

injury  of  an  employee  is  negligence  per  se: 
Campbell  v.  Spokane  <Sc  1.  E.  R.  Co.,  188  Fed.,  516. 

Circuit  Court,  Eastern  District  of  Washington,  April  17,  1911. 
When  a  statute  is  designed  to  protect  a  particular  class  of 
persons  against  a  particular  class  of  injuries,  a  violation  of  the 
statutory  duty  constitutes  negligence  per  se,  whenever  one  of 
the  protected  class  is  injured  from  a  cause  against  which  the 
statute  was  designed  to  protect  him. — Rvdkin,  D.  J.,  pp.  517-518. 
See  also   Grand  Trunk  Western  Ry.  Co.  v.  Poole,   93  N.  E.,  26; 
La  Mere  v.  Ry.  Tr  ns.  Co.  of  Minneapolis,  145  N.  W.,  1068;  St. 
Louis,  L  M.  cfc  S.  Ry.  Co.  v.  'McWhirter,  140  S.  W.  672;  NashviUe, 
C.  cfe  St.  L.  Ry.  Co.  V.  Henry,  164  S.  W.,  310.     But  see  St.  Louis, 
L  M.  c&  S.  Ry.  Co.  v.  McWhirter,  229  U.  S.,  265.     See  also: 
Shohoney  v.  Quincy,  0.  <&  K.  C.  Ry.  Co.,  122  S.  W.,  1025. 
Supreme  Court  of  Missouri,  November  27,  1909. 

Whilst  the  Leeds  coupler,  as  it  was  being  used  in  the  case 
now  before  us,  was  an  automatic  coupler  and  did  not  require 
the  switchman  to  go  between  the  cars,  yet  because  it  would  not 
couple  automatically  with  one  of  its  kind  it  did  not  measure 
up  to  the  standard  prescribed  by  the  Act  of  Congress.  But  an 
act  is  not  per  se  negligence  at  common  law  because  it  fails  to 
meet  the  requirement  of  a  statute.  *  *  *  So,  although  the 
Leeds  coupler  may  have  come  under  the  ban  of  the  Act  of  Con- 
gress, yet  unless  it  could  be  shown  to  have  not  been  reasonably 
safe  for  the  uses  to  which  it  was  put,  it  furnished  no  cause  of 
action  for  the  plaintiff  in  this  case. —  Valliant,  J.,  p.  1035. 

—  (a).  And  requiring  an  employee  to  use  defective  equipment  is  neg- 
ligence on  the  part  of  the  carrier,  which  becomes  actionable  in 
event  of  injury  to  such  employee  resulting  therefrom. 
Southern.  Ry.  Co.  v.  Carson,  194  U.  S.,  136. 
Supreme  Court,  April  18,  1904. 

The  trial  court  in  one  of  its  instnictions  set  forth  this  pro- 
vision, and  told  the  jury  that  if  they  found  the  railway  company 
was  engaged,  and  these  cars  were  being  used,  in  interstate  traffic, 


GENERAL  RULES  OF  LAW.  227 


and  that  they  were  not  equipped  with  the  automatic  couplers 
required,  such  failure  was  negligence;  and  it  was  further  charged 
that  raUroads  were  required  to  keep  their  appliances  in  safe  and 
suitable  order.  *  *  *  By  this  ruling  no  right  specifically  set 
up  or  claimed  under  the  Act  of  Congress  by  defendant  below  was 
decided  against.  There  was  no  pretense  that  the  Act  of  Congress 
provided  that  the  automatic  couplers  need  not  be  kept  in  order, 
and  whether  the  cars  in  question  were  used  in  moving  interstate 
traffic  and  whether  the  coupling  appliances  were  defective  or  not, 
were  facts  left  to  the  jury  and  determined  by  their  verdict.  The 
recovery  was  not  sought  on  the  single  ground  of  want  of  safe 
appliances.  That  was  important  in  its  connection  with  Carsjn's 
bemg  ordered  to  go  between  the  cars,  and  it  was  negligence  while 
he  was  obeying  that  order,  which  was  chiefly  relied  on. — Fuller 
Chief  Justice,  pp.  140-141. 

VoelJcer  v.  Chicago,  M.  cfc  St.  P.  Ry.  Co.,  116  Fed.,  867. 

Circuit  Court,  Northern  District  of  Iowa,  June  16,  1902. 

Subjecting  an  employee  to  risk  life  and  limb  by  calling 
upon  him  to  use  appliances  which  have  become  defective  and 
inoperative  through  the  failure  to  use  proper  care  on  part  of 
the  master  is  certainly  negligence,  which  will  become  actionable 
if  injury  results  therefrom  to  the  employee,  and  liability  therefor 
can  not  be  avoided  by  the  plea  that  if  the  company  was  thus 
guilty  of  actionable  negligence  in  this  particular  it  can  not  be 
held  responsible  therefor  because  it  was  guilty  of  another  act  of 
negligence  which  aided  in  causing  the  accident. — Shiras,  D.  J., 
p.  875. 

Greenlee  v.  Southern  Ry.  Co.,  30  S.  E.,  115. 

Supreme  Court  of  North  Carolina,  May  26,  1898. 

In  any  aspect  of  this  case,  the  defendant  is  liable,  whether 
the  plaintiff  was  or  was  not  guilty  of  contributory  negligence; 
for  the  negligence  of  the  defendant  in  not  having  seK-couplers, 
and  in  sending  a  man  to  couple  cars  at  all,  was  a  continuing  neg- 
ligence, which  existed  subsequent  to  the  contributory  neglis^ence, 
if  there  had  been  any,  of  the  plaintiff,  and  was  the  proximate 
cause — the  causa  causans — of  the  injury. — Clarlc,  J.,  p.  115. 

Troxler  v.  Southern  Ry.  Co.,  32  S.  E.,  550. 

Supreme  Court  of  North  Carolina,  March  21,  1899. 

It  has  been  heretofore  held,  in  Greenlee  v.  Railway  Co.,  30 
S.  E.,  115,  that  failure  of  a  railroad  company  to  equip  its  freight 
cars  with  modern  self -coupling  devices  is  negligence  per  se,  con- 
tinuing up  to  the  time  of  an  injury  sustained  by  an  employee  in 
coupling  cars  by  hand,  and  renders  the  company  liable,  whether 
sucn  employee  was  negligent  in  the  manner  of  making  the  coup- 
ling or  not.  The  same  ruling  had  been  previously  made  as  to  the 
duty  of  furnishing  automatic  car  couplers  on  passenger  trains  in 
Mason  v.  Railroad  Co.,  16  S.  E.,  698.— CZar^,  J.,  p.  550. 

Elmore  v.  Seaboard  Air  Line  Ry.  Co.,  41  S.  E.,  786. 

Supreme  Court  c  f  North  Can  lina,  June  13,  1902. 

This  propositi(  n  is  settled  in  the  cases  abave  cited,  to  wit,  it 
is  the  duty  of  the  defendant  to  use  automatic  couplers,  and  if,  on 
failure  so  to  do  injury  occurs  to  an  employee  which  would  not 


228  ACTIONS  FOR  PERSONAL  INJURY. 


have  happened  if  there  had  been  a  coupler,  this  is  a  continuing 
negligence  en  the  part  of  the  emplcyer,  which  cuts  cff  the  defense 
cf  ccntributory  negligence;  such  failure  being  the  causa  causans — 
Clarlc,  J.,  p.  787. 
Grand  Trurik  Western  By.  Co.  v.  Lindsay,  201  Fed.,  836;  WinTcler  v. 
PUladelpUa  cfc  R.  By.  Co.,  53  Atl.,  90;  Philadelphia  ck  B.  By.  Co. 
V.  Winkler,  56  Atl.,  112;  Galveston  H.  <&  S.  A.  By.  Co.  v.  KuHz, 
147  S.  W.,  658. 

-(b).  But  the  temporary  substitntion  by  a  carrier  of  a  "stub  pilot'* 
for  the  long  pilot  previously  used,  in  order  to  install  an  automatic 
coupler,  does  not  constitute  actionable  negligence. 

Briggs  v.  Chicago  cfc  N.  W.  By.  Co.,  125  Fed.,  745. 

Circuit  Court  of  Appeals,  8th  Circuit,  October  26,  1903. 

It  was  its  duty,  or  at  least  its  privilege,  to  equip  its  engine, 
as  it  did,  with  an  automatic  coupling  appliance,  which  it  could 
only  do  by  removing  the  long  pilot  and  substituting  a  shorter  one. 
The  shorter  pil(  t  which  it  adopted  was  then  in  general  use  on 
other  roads,  and  was  regarded  as  a  reasonably  safe  appliance,  and 
at  the  time  of  the  accident  it  was  in  nowise  out  of  repair.  As  a 
general  rule,  a  railroad  company  is  not  required  to  use  upon  all 
cf  its  cars  the  safest  possible  appliances,  or  those  of  the  latest  and 
most  improved  pattern,  but  is  at  liberty  to  make  use  of  such 
appliances  as  are  at  the  time  in  general  use  on  other  well-managed 
railroads,  and  are  of  the  kind  that  are  regarded  as  reasonably 
safe.  [Northern  Pacific  R.  Co,  v.  Blake,  63  Fed.,  45.]  In  the  case 
in  hand  it  appears  that  stub  pilots  are  in  general  use,  and  are  the 
only  ones  that  can  be  successfully  empl(  yed  when  engines  are 
fitted  with  automatic  couplers.  In  what  respect,  then,  was  the 
defendant  company  guilty  of  any  negligence  ?  Counsel  for  the 
plaintiff  in  error  says  that  he  concedes  that  the  company  was  not 
negligent  in  leaving  its  road  unfenced,  but  he  suggests  that  as  the 
engine  in  question  happened  to  be  employed  at  tne  time  in  what 
is  termed  "open-range  country,"  where  cattle  roamed  at  will,  the 
defendant  company  was  negligent  in  removing  the  long  pilot  and 
substituting  a  shorter  one.  We  can  not  adopt  this  view.  As 
locomotive  engines  are  liable  to  be  used  en  any  portion  f  f  a  rail- 
road, and  as  they  may  be  needed  at  any  moment  to  handle  inter- 
state traffic,  we  think  that  an  interstate  carrier  like  the  defendant 
company  is  entitled  to  have  all  of  its  engines  so  equipped  that  they 
may  at  any  time  be  used  in  such  service  without  viclation  of  the 
Act  of  Ccngress,  and  that  it  can  not  be  foimd  guilty  of  negfigence 
in  so  doing. —  Thayer,  C.  J.,^.  747. 

In  an  action   for  personal   injury  based  upon  a  violation  of  the 
federal  Safety  Appliance  Acts,  the  defense  of  contributory  negli- 
gence is  unimpaired: 
Schlemmer  v.  Buffalo,  B.  &  P.  By.  Co.,  220  U.  S.,  590. 
Supreme  Court,  May  15,  1911. 

But  there  is  nothing  in  the  statute  absolving  the  employee 
from  the  duty  of  using  ordinary  care  to  protect  himself  from 
injury  in  the  use  of  the  car  with  the  appliances  actually  fur- 
nished.    In  other  words,  notwithstanding  the  company  failed 


GENEEAL  RULES  OF  LAW.  229 


to  comply  with  the  statute,  the  employee  was  not  for  that 
reason  absolved  from  the  duty  of  usmg  ordinary  care  for  his 
own  protection  under  the  circumstances  as  they  existed.  This 
has  been  the  holding  of  the  courts  in  construing  statutes  enacted 
to  promote  the  safety  of  employees.  [Citing  cases]. — Bay,  Jus- 
tice, pp.  596-597. 
Denver  &  R.  G.  R.  Co.  v.  Arrighi,  129  Fed.,  847;  Toledo,  St.  L.  & 
W.  R.  Co.  V.  Gordon,  177  Fed.,  152;  Poppkir  v.  Minneapolis, 
St.  P.  S  S.S.  M.  Ry.  Co..  141  N.  W.,  798;  Dailey  v.  Southern  Ry. 
Co.,  C.  C,  E.  D.  Tennessee,  Jan.  10,  1911,  vSanford,  D.  J. 
[unreported].  But  see  Johnson  v.  Great  Northern  Ry.  Co.,  178 
Fed.,  643. 

— (a).  But  the  burden  of  proving   contributory  negligence  is  on  the 
defendant. 
WinUer  v.  Philadelphia  cfc  R.  Ry.  Co.,  53  At!.,  90. 

6,  If  an  employee,  in  the  course  of  his  employment,  enters  between 
cars  or  steps  between  the  rails  in  order  to  examine  or  to  operate 
a  coupler  and  is  thereby  injured,  he  is  not  chargeable,  for  this 
reason  alone,  with  contributory  negligence  so  as  to  preclude  his 
recovery  of  damages. 

SMemmer  v.  Buffalo,  R.  <&  P.  Ry.  Co,,  205  U.  S.,  1. 
Supreme  Court,  March  4,  1907. 

We  are  clearly  of  opinion  that  Schlemmer's  rights  were  in 
no  way  impaired  by  his  getting  between  the  rails  ^nd  attempting 
to  couple  the  cars.  So  far  he  was  saved  by  the  provision  that 
he  did  not  assume  the  risk. — Holmes,  Justice,  pp.  13-14. 

Chicago,  R,  L  <&  P.  Ry,  Co,  v.  Brmmiy  229  U.  S.,  317. 
Supreme  Court,  June  10,  1913. 
The  movement  of  trains  requires  prompt  action,  and  we 
can  not  hold  that  as  a  matter  of  law  Brown,  in  leaning  forward 
to  remove  a  pin  which  would  have  yielded  to  his  effort,  was 
guilty  of  neghgence  because  he  did  not  anticipate  that  his  foot 
might  slip  and  be  caught  in  on  open  frog  rail  of  which  he  had  or 
could  be  charged  with  knowledge.  The  case  is  within  the  ruling 
in  Texas  &  Pacific  Ry.  Co.  v.  Harvey,  228  U.  S.,  319. — McKenna, 
Justice,  pp.  321-322.' 

Norfolk  &  W.  Ry.  Co.  v.  Hazelrigg,  184  Fed.,  828;  Chicago,  R.  I, 
<x  P.  Ry.  Co.  V.  Brown,  185  Fed.,  80;  Nichols  v.  Chesapeake 
<&  0.  Ry.  Co.,  195  Fed.,  913;  Grand  Trunk  Western  Ry.  Co.  v. 
Lindsay,  201  Fed.,  836;  St.  Louis,  L  M.  c&  S.  Ry.  Co,  v.  York, 
123  S.  W.,  376;  Johnston  v.  Chicago  Great  Western  Ry.  Co., 
164  S.  W.,  260;  Kansas  City  M.  &  B.  R.  Co.  v.  FUppo,  35  So., 
457;  Sprague  v.  Wisconsin  Central  Ry.  Co.,  116  N.  Wt,  104.  See 
also  Grand  Trunk  Western  Ry.  Co.  v.  Poole,  93  N.  E.,  26;  Buck- 
lew  V.  Central  Iowa  Ry.  Co.,  21  N.  W.,  103. 

Per  Contra: 

ToUdo,  St.  L.  &  W.  R.  Co.  v.  Gordon,  177  Fed.,  152.  See  also  Qxlhert  v.  Burling- 
ton a  R.  &  N.  Ry.  Co.,  128  Fed.,  529;  SiUtle  v.  Choctaw,  0.  &  G.  R.  Co.,  144 
Fed.,  668;  Union  Pacific  R.  Co.  v.  Brady,  161  Fed.,  719;  Norfolk  &  W.  Ry.  Co. 
V.  fia2gZn^(7  (1st  appeal).  170  Fed.,  551.  But  see  Chicago,  B.  &  Q.  Ry.  Co.  v. 
?7.  5-.,  211  Fed.,  12. 


!2d©  ACTIOlSrS  FOE  PERSONAL  INJURY. 


7.  In  an  action  for  personal  injury  the  question  of  contributory  negli- 

gence is  ordinarily  one  for  the  jury. 

Donegan  v.  Baltimore  dc  N.  Y.  Ry.  Co.,  165  Fed.,  869. 

Circuit  Court  of  Appeals,  2nd  Circuit,  November  16,  1908. 
Without  attempting  to  differentiate  between  the  defense 
of  assumption  of  the  risk,  which  can  not  be  set  up  in  an  action 
based  upon  the  Safety  Appliance  Law,  and  the  defense  of  con- 
tributory negligence,  it  is  sufficient  to  say  that  the  question  of 
contributory  negligence  here  was  one  for  the  jury.     *     *     * 

It  was  peculiarly  within  the  province  of  the  jury  to  look 
into  all  the  facts  ana  circumstances  and  determine  whether  the 
plaintiff  used  the  ordinary  care  required  of  him  in  carrying  out 
the  order  which  was  given  him. — Noyes,  C.  J.,  p.  872. 

Johnson  V.  Great  Northern  Ry.  Co.,  178  Fed.,  643;  Chicago,  R.  L 
<fh  P.  Ry.  Co.  V.  Brown,  185  Fed.,  80;  Nichols  v.  ChesapeaJce  c& 
0.  Ry.  Co.,  195  Fed.,  913;  Grand  Trunk  Western  Ry.  Co.  v. 
Poole,  93  N.  E.,  26;  La  Mere  v.  Ry.  Trans.  Co.  of  Minneapolis, 
145  N.  W.,  1068;  Brady  v.  Kansas  City,  St.  L.  &  C.  R.  Co., 
102  S.  W.,  978;  St.  Louis,  I.  M.  cfc  S.  Ry.  Co.  v.  Yorlc,  123 
S.  W.,  376;  Johnston  v.  Chicago  Great  Western  Ry.  Co.,  164 
S.  W.,  260. 

(a).  Knowledge  and  experience  in  the  work  performed  are  proper 
elements  to  be  considered  in  determining  what  is  contributory 
negligence. 

Norfolk  cfc   W.  Ry.  Co.  v.  Hazelrigg,  184  Fed.,  828. 

8.  In  an  action  for  personal  injury,  the  question  of  proximate  cause 

ordinarily  is  one  for  the  jury: 

Donegan  v.  Baltimore  &  N.  Y.  Ry.  Co.,  165  Fed.,  869. 

Circuit  Court  of  Appeals,  2nd  Circuit,  November  16,  1908. 
It  is  generally  tno  province  of  the  jury  to  determine  the 
proximate  cause  of  an  injury.  *  *  *  it  was  for  the  jury  to 
determine  whether  the  failure  of  the  defendant  to  equip  the  cars 
with  the  appliances  required  by  the  statute  was,  in  view  of  all  the 
facts  and  circumstances,  a  proximate  cause  of  the  accident. — 
Noyes,  C.  J.,  pp.  871-872. 

Erie  R.  Co.  v.  RusseU,  183  Fed.,  722;  Grand  Trunk  Western  Ry. 
Co.  V.  Poole,  93  N.  E.,  26;  La  Mere  v.  Ry.  Trans.  Co.  of  Min- 
neapolis, 145  N.  W.,  1068;  Thornhro  v.  Kansas  City,  M.  c&  0. 
Ry.  Co.,  139  Pac,  410;  Devine  v.  Illinois  Central  R.  Co.,  156 
lU.  App.,  369;  Snyder  v.  Southern  Ry.  Co.,  C.  C.  E.  D.  Teimessee 
Jan.  21,  1910.     Sauford,  D.  J.  [unreported]. 

— (a).  But  where  the  facts  are  undisputed,  and  are  such  that  all  rea- 
sonable minds  must  reach  the  same  conclusion,  the  question  of  the 
proximate  cause  of  an  injury  is  one  of  law. 
Devins  v.  Chicago  <&  C.  R.  R.  Co.,  102  N.  E..  803. 


GENEEAL  RULES  OF  LAW.  231 


9.  In  order  to  bring  an  action  for  personal  injury  within  the  purview 
of  the  federal  Hours  of  Service  Act  or  the  federal  Safety  Appliance 
Acts,  it  is  necessary  that  some  causal  relation  or  connection  be 
established  between  a  violation  of  the  statute  and  the  injury 
sustained. 

Devine  v.  Chicago  cfc  C.  R.  R.  Co.,  102  N.  E.,  803. 
Supreme  Court  of  Illinois,  June  18,  1913. 

But  the  locomotive  had  no  hrake.  It  could  only  be  stopped 
by  reversing  the  lever.  This  imparted  a  swaying  motion  to  it, 
which,  in  connection  with  the  defective  track,  caused  the  derail- 
ment, and  the  deceased  was  jostled  from  the  footboard  after  the 
locomotive  got  off  the  rails.  Under  these  facts,  the  direct  and 
proximate  cause  of  the  injury  was  the  derailment  of  the  loco- 
motive, and  the  derailment  was  an  independent  cause,  not  in  any 
way  connected  with  the  defect  in  the  coupling  appliances,  that 
that  caused  the  injury.  If  the  failure  to  have  the  locomotive 
equipped  with  an  automatic  coupler  such  as  is  required  by  the 
statutes  does  no  more  than  to  bring  about  a  condition  which 
makes  the  injury  possible  by  the  intervention  of  some  other  dis- 
connected cause,  then  the  negligence  complained  of  is  not  the 
proximate  cause  of  the  injury.  It  seems  to  us  that  the  most 
that  can  possibly  be  said  of  the  negligence  charged  in  the  declara- 
tion is  that  it  produced  a  condition  which,  being  operated  upon 
by  other  disconnected  acts  of  negligence,  caused  the  injury  com- 
plained of. —  Vickers,  J.,  p.  807. 

Dodge  v.  Chicago  Great  Western  Ry.  Co.,  146  N.  W.,  14;  Dailey  v. 
Southern  Ry.  Co.,  C.  C,  E.  D.  Tennessee,  Jan.  10,  1911,  San- 
ford,  T>.  J.  [unreported].  See  also  St.  Louis,  I.  M.  cfe  S.  Ry.  Co, 
V.  McWUrter,  229  U.  S.,  265;  Schweig  v.  Chicago,  M.  &  St.  P. 
Ry.  Co.,  205  Fed.,  96;  Osborne's  AdmW.  v.  Cincinnati,  N.  0.  <Sb 
T.  P.  Ry.  Co.,  164  S.  W.,  818. 

—  (a).  But  if  all  the  facts  necessary  to  bring  an  action  for  personal 
injury  within  the  purview  of  either  of  the  Acts  are  stated  in  the 
declaration,  it  is  immaterial  that  the  statute  itself  is  not  described 
in  terms  therein. 
Voelker  v.  Chicago,  M.  cSs  St.  P.  Ry.  Co.,  116  Fed.,  867. 

Circuit  Court,  Northern  District  of  Iowa,  June  16,  1902. 
As  matter  of  pleading,  it  certainly  can  not  be  said  that  in 
order  to  base  a  right  of  recovery  on  the  provisions  of  the  statute 
it  was  necessary  to  cite  the  statute  or  its  provisions  in  the  peti- 
tion.    *     *     *     It  was  not  necessary,  nor,  indeed,  permissible, 
under  the  rules  of  pleading  that  the  petition  should  set  forth  the 
law  which  had  been  violated.— ^S^iras,  D.  J.,  p.  871. 
Missouri  Pacific  Ry.  Co.  v.  BrinJcmeier,  93  Pac,  621. 
Supreme  Court  of  Kansas,  April  6,  1907. 

It  is  unnecessary  to  specifically  mention  this  Act  of  Congress 
in  a  cause  of  action  predicated  thereon.  It  is  sufficient  if  the 
pleading  contains  facts  which  would  suggest  to  a  person  familiar 
with  such  Act  that  its  provisions  had  been  violated. — Graves, 
J.,  p.  622. 


232  ACTIONS  FOR  PERSONAL  INJURY. 

Allen  V.  Tuscarora  Valley  R.  Co.,  78  Atl.,  34.  See  also  Grand  Trunk 
Western  Ry  Co.  v.  Lmdsey,  233  V.  S.,  42.  But  see  Lewis  v. 
Pennsylvania  R.  Co.,  69  Atl.,  821. 

10.  Irrespective  of  any  statute,  it  is  the  duty  of  carriers  to  provide 
reasonably   safe   appliances   and   tools   and   to   promulgate   and 
enforce  efficient  rules  in  the  furtherance  of  the  safety  of  employees : 
Winller  v.  PUladelpMa  cfc  R.  Ry.  Co.,  53  Atl.,  90. 
Superior  Court  of  Delaware,  June  10,  1912. 

It  is  the  duty  of  the  master  to  provide  for  his  employees  a 
reasonably  safe  place  in  which  to  work  and  reasonably  safe  tools 
and  apphances  with  which  to  work,  and  also  to  keep  them  in  a 
reasonably  safe  condition.  The  place,  tools  and  macninery  need 
not  be  of  the  best,  nor  of  the  latest  pattern,  nor  of  the  most 
improved  kind,  but  must  be  reasonably  safe  and  adapted  to  the 
purpose  for  which  the;y  are  to  be  used.  If  the  master  fails  to 
perform  his  duty,  and  injury  results  from  such  failure  alone,  he 
18  liable.  It  is  the  duty  of  the  master  to  make,  promulgate,  and 
enforce  proper  rules  for  the  government  of  his  business  where  it  is 
so  large  or  complicated  as  to  make  his  supervision  impracticable. — 
Lore,  Ch,  J.,  p.  91. 

— (a).  But  the  mere  promulgation  of  such  rules  without  their  enforce- 
ment, will  not  protect  a  carrier  from  liability  under  a  mandatory 
statute. 

Burlio  V.  Minneapolis  &  St.  L,  Ry.  Co.,  141  N.  W.,  300. 
Supreme  Court  of  Minnesota,  May  9,  1913. 

It  is  plain  that  the  promulgation  of  rules,  which  are  allowed 
to  remain  unenforced  and  dormant  until  invoked  as  a  shield  in  a 
lawsuit,  is  then  to  be  given  scant  consideration,  and  will  not 
serve  to  protect  from  liability  for  failure  to  comply  with  a  man- 
datory statute. — Holt,  J.,  p.  303. 

Popplar  V.  Minneapolis,  St.  P.  c&  S.  S.  M.  Ry.  Co.,  141  N.  W.,  798. 
Supreme  Court  of  Minnesota,  May  23,  1913. 

Ordinarily  the  violation  by  an  employee  of  a  rule  of  the 
employer,  made  for  the  protection  of  employees,  constitutes 
negligence  per  se.  But  this  doctrine  is  not  an  absolute  one.  It 
yields  to  practical  necessity,  [88  N.  W.,  974;  131  N.  W.,  329.] 
If  the  employer  has  himself  failed  to  comply  with  some  require- 
ment of  law  and  such  failure  makes  it  impossible  for  the  employee 
to  do  his  work  in  the  usual  way,  this  may  excuse  him  in  the  viola- 
tion of  such  a  rule.  It  does  excuse  him  if  he  follows  a  method  of 
doing  the  work  which  is  the  only  method  reasonably  practicable 
under  these  circumstances,  or  which  is  a  method  wluch  a  reason- 
ably prudent  man  would  follow. — HaUam,  J.,  p.  800. 

See  also  Sprague  v.  Wisconsin  Central  Ry.  Co.,  116  N.  W.,  104; 
Prady  v.  Kansas  aty,  St.  L.  <&  C.  R.  Co.,  102  S.  W.,  978;  St 
Louis  I.  M.  <^  S.  Ry.^Co.  v.  York,  123  S.W.,  376;  Yost  v.  Union 
Pacific  R.  Co.,  149  S.  W.,  577;  Thomhro  v.  Kansas  City,  M.  &  0. 
Ry.  Co.,  ir9  Pac,  410.  See  also  TJ.  8.  v.  Illinois  Central  R.  Co., 
180  Fed.,  630;  SUams  v.  Chicago,  R.  /.  cfe  P.  Ry.  Co.,  148  N.  W., 
128. 


GENEEAL  RULES  OF  LAW.  233 


11.  Where  one  of  the  grounds  in   a  motion  for  a  new  trial  is  that 

the  amount  of  the  verdict  is  excessive,  and  the  trial  court  has 
denied  snch  motion,  an  appellate  court,  in  passing  upon  an  as- 
signment of  error  based  thereon,  will  not  disturb  the  verdict  on 
such  grounds,  unless  the  verdict  is  such  as  to  shock  its  judicial 
conscience  or  as  to  indicate  that  the  jury  must  have  been  unduly 
influenced  in  some  way,  or  swayed  by  bias,  prejudice,  or  passion. 
Atlantic  Coast  Line  R.  Co.  v.  WJiitneyj  61  So.,  179. 

12.  In  an  action  for  personal  injuries  based  upon  a  violation  of  the 
federal  Safety  Appliance  Acts,  evidence  of  such  injury  sustained 
by  reason  of  the  defendant's  use  in  interstate  commerce  of  cars 
so  defective  as  to  be  incapable  of  being  coupled  without  some 
one  going  between  them  establishes  a  prima  facie  case,  even 
though  the  precise  nature  of  the  defect  is  not  disclosed. 

Norfollc  c&  W.  R.  Co.  v.  Eazelrigg,  184  Fed.,  828. 

13.  Where  the  declaration  in  an  action  for  personal  injuries  alleges 
that  defendant  was  at  the  time  of  the  accident  engaged  in  operat- 
ing a  train  in  interstate  commerce,  and  that  plaintiff  was  em- 
ployed by  defendant  in  such  operation,  it  will  be  inferred,  after 
verdict,  that  the  train  was  moved  by  defendant,  although  not 
so  alleged  in  terms. 

Grand  Trunk  Ry.  Co,  v.  Lindsay,  201  Fed.,  836. 

14.  The  Acts  are  intended,  not  to  increase  the  difficulty  of  securing 
compensation  for  injuries  sustained  by  reason  of  defective  appliances, 
but  to  decrease  the  number  of  instances  in  which  such  injuriei 
occur. 

Chicago,  R.  L  &  P,  Ry.  Co.  v.  Br<mn,  185  Fed.,  80. 


APPENDIX. 


Federal  Safety  Appliance,  Hours  of  Service,  and  Ash  Pan  Acts, 

with  pertinent  excerpts  from  other  statutes — Orders  and 

Administrative  Rulings  of  the  Interstate  Commerce 

Commission — Index. 


235 


THE  SAFETY  APPLIANCE  ACTS. 

Act  of  March  2,  1893  [27  Stat,  at  L.,  631],  as  amended  by 
Act  of  AprU  1,  1896  [29  Stat,  at  L.,  86]. 

AN  ACT  To  promote  the  safety  of  employees  and  travelers  upon 
railroads  by  compelling  common  carriers  engaged  in  interstate 
commerce  to  equip  their  cars  with  automatic  couplers  and  con- 
tinuous brakes  and  their  locomotives  with  driving-wheel  brakes, 
and  for  other  purposes. 

Be  it  enacted  hy  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  assembled, 
That  from  and  after  the  first  day  of  January,  eighteen  ^^riv^-^whwi 
hundred  and  ninety-eight,  it  shall  be  unlawful  for  any 
common  carrier  engaged  in  interstate  commerce  by  rail- 
road to  use  on  its  line  any  locomotive  engine  in  moving 
interstate  traffic  not  equipped  with  a  power  driving- 
wheel  brake  and  appliances  for  operating  the  train-brake 
system,  or  to  run  any  train  in  such  traffic  after  said  date 
that  has  not  a  sufficient  number  of  cars  in  it  so  equipped 
with  power  or  train  brakes  that  the  engineer  on  the  loco- 
motive drawing  such  train  can  control  its  speed  without 
requiring  brakemen  tb  use  the  common  hand  brake  for 
that  purpose. 

Sec.  2.  That  on  and  after  the  first  day  of  January,  ^^pf^o  "»»**«» 
eighteen  hundred  and  ninety-eight,  it  shall  be  unlawful 
for  any  such  common  carrier  to  haul  or  permit  to  be 
hauled  or  used  on  its  line  any  car  used  in  moving  inter- 
state traffic  not  equipped  with  couplers  coupling  auto- 
matically by  impact,  and  which  can  be  uncoupled  without 
the  necessity  of  men  going  between  the  ends  of  the  cars. 

Sec.  3.  That  when  any  person,  firm,  company,  or  corpo-  mr^Spfi^??- 
ration  ens^aged  in  interstate  commerce  by  railroad  shall  ^"se   to  receive 

^   o  J  cars  from  connect* 

have  equipped  a  sufficient  number  of  its  cars  so  as  to  com-  ^^  "^es  or  ship- 
ply  with  the  provisions  of  section  one  of  this  Act,  it  may 
lawfully  refuse  to  receive  from  connecting  lines  of  road  or 
shippers  any  cars  not  equipped  sufficiently,  in  accordance 
with  the  first  section  of  this  Act,  with  such  power  or  train 
brakes  as  will  work  and  readily  interchange  with  the 
brakes  in  use  on  its  own  cars,  as  required  by  this  Act. 

Sec.  4.  That  from  and  after  the  first  day  of  July,  eight-  h^SSiid??''  ^^ 
een  hundred  and  ninety-five,  until  otherwise  ordered  by 

237 


238  SAFETY  APPLIANCE  ACTS. 

the  Interstate  Commerce  Commission,  it  shall  be  unlawful 
for  any  railroad  company  to  use  any  car  in  interstate 
commerce  that  is  not  provided  with  secure  grab  irons  or 
handholds  in  the  ends  and  sides  of  each  car  for  greater 
security  to  men  in  coupling  and  uncoupling  cars. 
h  tiht*  ^t^Arl^  ^^^'  ^'  ^^^^  within  ninety  days  from  the  passage  of  this 
bars  for  freight  Act  the  American   Railway  Association  is  authorized 

cars.  .  "^ 

hereby  to  designate  to  the  Interstate  Commerce  Commis- 
sion the  standard  height  of  drawbars  for  freight  cars, 
measured  perpendicular  from  the  level  of  the  tops  of  the 
rails  to  the  centers  of  the  drawbars,  for  each  of  the  several 
gauges  of  railroads  in  use  in  the  United  States,  and  shall 
fix  a  maximum  variation  from  such  standard  height  to  be 
allowed  between  the  drawbars  of  empty  and  loaded  cars. 
Upon  their  determination  being  certified  to  the  Interstate 
Commerce  Commission,  said  Commission  shall  at  once 
give  notice  of  the  standard  fixed  upon  to  aU  common  car- 
riers, owners,  or  lessees  engaged  In  interstate  commerce  in 
the  United  States  by  such  means  as  the  Commission  may 
deem  proper.  But  should  said  Association  fail  to  d(^ter- 
mine  a  standard  as  above  provided,  it  shaU  be  the  duty 
of  the  Interstate  Commerce  Commission  to  do  so,  before 
July  first,  eighteen  hundred  and  ninety-four,  and  imurne- 
diately  to  give  notice  thereof  as  aforesaid.  And  after  July 
first,  eighteen  hundered  and  ninety-five,  no  cars,  either 
loaded  or  unloaded,  shall  be  used  in  interstate  traffic  which 
do  not  comply  with  the  standard  above  provided  for. 

Penalty.  Sec.  6.  [As  amended  April  i,  1896]    That  any  such 

common  carrier  using  any  locomotive  engine,  running  any 
train,  or  hauling  or  permitting  to  be  hauled  or  used  on  its 
line  any  car  in  violation  of  any  of  the  provisions  of  this 
Act,  shall  be  hable  to  a  penalty  of  one  hundred  dollars  for 
each  and  every  such  violation,  to  be  recovered  in  a  suit  or 
suits  to  brought  by  the  United  States  district  attorney 
in  the  district  court  of  the  United  States  having  jurisdic- 
tion in  the  locahty  where  such  violation  shall  have  been 
committed ;  and  it  shall  be  the  duty  of  such  district  attor- 
ney to  bring  such  suits  upon  duly  verified  information 
being  lodged  with  him  of  such  violation  having  occurred; 
and  it  shall  also  be  the  duty  of  the  Interstate  Commerce 
Commission  to  lodge  with  the  proper  district  attorneys  in- 
formation of  any  such  violations  as  may  come  to  its  knowl- 

Exoeptions.  edge :  Provided,  That  nothing  in  this  Act  contained  shall 
apply  to  trains  composed  of  four-wheel  cars  or  to  trains 
composed  of  eight-wheel  standard  logging  cars  Where  the 


AMEITOMENT  OF  1896— ACT  OF  1903.  239 


height  of  such  car  from  top  of  rail  to  center  of  coupUng 
does  not  exceed  twenty-five  inches,  or  to  locomotives  used 
in  hauling  such  trains  when  such  cars  or  locomotives  are 
exclusively  used  for  the  transportation  of  logs. 

Sec.  7.  That  the  Interstate  Commerce  Commission  may  gtfte'^^^^S'er^ 
from  time  to  time  upon  full  hearing  and  for  good  cause  J'^SSf'^ttae  o° 
extend  the  period  within  which  any  common  carrier  shall  ^^^^Yth  this  xStl 
comply  with  the  provisions  of  this  Act. 

Sec.  8.  That  any  employee  of  any  such  common  carrier  ^J^Pj^yj®^  "^J 
who  may  be  injured  by  any  locomotive,  car,  or  train  in  use  JS^mwit.'*'  ®™' 
contrary  to  the  provision  of  this  Act  shall  not  be  deemed 
thereby  to  have  assumed  the  risk  thereby  occasioned, 
although  continuing  in  the  employment  of  such  carrier 
after  the  unlawful  use  of  such  locomotive,  car,  or  train 
had  been  brought  to  his  knowledge. 

Act  of  March  2,  1903  [32  Stat,  at  L.,  943]. 
AN  ACT  To  amend  an  Act  entitled  "An  Act  to  promote  the  safety 
of  employees  and  travelers  upon  railroads  by  compelling  common 
carriers  engaged  in  interstate  commerce  to  equip  their  cars  with 
automatic  couplers  and  continuous  brakes  and  their  locomotives 
with  driving-wheel  brakes,  and  for  other  purposes,"  approved 
March  second,  eighteen  hundred  and  ninety-three,  and  amended 
April  first,  eighteen  hundred  and  ninety-six. 

Be  it  enacted  by  the  Senate  and  House  of  Representa- 
tives of  the  United  States  of  America  in  Congress  assem- 
bled, That  the  provisions  and  requirements  of  the  Act  en-an(»ActofMar^ 
titled  *'An  Act  to  promote  the  safety  of  employees  andbyAcTo^^pr.i, 
travelers  upon  railroads  by  compelling  common  carriers  in  Tei^itOTie?MjJ 

!•.,.,  .  •      J.-L    •  'xT-  District  of  Colum- 

engaged  m  mterstate  commerce  to  equip  theu*  cars  withbia. 
automatic  couplers  and  continuous  brakes  and  their  loco- safetjT  App1ianc« 
motives  with  driving-wheel  brakes,  and  for  other  pur- pieS  Saif  apply 
poses, '^  approved  March  second,  eighteen  hundred  andcoup???s\r« 
ninety-three,  and  amended  April  first,  eighteen  hundred  ^^^  '*°^^*  ^' 
and  ninety-six,  shall  be  held  to  apply  to  common  carriers 
by  railroads  in  the  Territories  and  the  District  of  Co- 
lumbia and  shall  apply  in  all  cases,  whether  or  not  the 
couplers  brought  together  are  of  the  same  kind,  make,  or 
type ;  and  the  provisions  and  requirements  hereof  and  of 
said  Acts  relating  to  train  brakes,  automatic  couplers,  grab  ancf  ^Acts^^aii 
irons,  and  the  height  of 'drawbars  shall  be  held  to  apply  IqPJ'ip^niVnfJf 
to  all  trains,  locomotives,  tenders,  cars,  and  similar  ve- |S|ed ^lL°^?nterI 
hicks  used  on  any  railroad  engaged  in  interstate  com-^'**^®*^°"°^®'"°®' 
merce,  and  in  the  Territories  and  the  District  of  Colum- 
bia, and  to  aU  other  locomotives,  tenders,  cars,  and  similar 
vehicles  used  in  connection  therewith,  excepting  those    Exceptions. 


240  SAFETY  APPLIANCE  ACTS. 


trains,  cars,  and  locomotives  exempted  by  the  provisions 
of  section  six  of  said  Act  of  March  second,  eighteen  hun- 
dred and  ninety-three,  as  ameaded  by  the  Act  of  April 
first,  eighteen  hmidred  and  ninety-six,  or  which  are  used 
upon  street  railways. 

Sec.  2.  That  whenever,  as  provided  in  said  Act,  any 
train  is  operated  with  power  or  train  brakes,  not  less  than 
fifty  per  centum  of  the  cars  in  such  train  shall  have  their 
brakes  used  and  operated  by  the  engineer  of  the  locomo- 
tive drawing  such  train;  and  all  power-braked  cars  in 
such  train  which  are  associated  together  with  said  fifty 
per  centum  shall  have  their  brakes  so  used  and  operated; 
and,  to  more  fully  carry  into  effect  the  objects  of  said  Act, 
Com  mission  the  Interstate  Commerce  Commission  may,  from  time  to 

may  increase    .  e         ^   ■,%  i  •  •  .    . 

minimum  per-  tmic,  after  luU  hearing,  increase  the  minimum  percentage 

•entage  of  power  '      .  •  •       i         i  i       •   i 

or   trato   brake  of  cars  in  any  train  required  to  be  operated  with  power  or 

cars  to  be  used.  ^  t.  r  r 

train  brakes  which  must  have  their  brakes  used  and  oper- 
ated as  aforesaid;  and  failure  to  comply  with  any  such 
requirement  of  the  said  Interstate  Commerce  Commission 
Penalty.  shall  be  subject  to  the  like  penalty  as  failure  to  comply 
with  any  requirement  of  this  section. 

Sec.  3.  That  the  provisions  of  this  Act  shall  not  take 
effect  until  September  first,  nineteen  hundred  and  three. 
Nothing  in  this  Act  shall  be  held  or  construed  to  relieve 
any  common  carrier,  the  Interstate  Commerce  Commis- 
sion, or  any  United  States  district  attorney  from  any  of 
the  provisions,  powers,  duties,  liabilities,  or  requirements 
of  said  Act  of  March  second,  eighteen  hundred  and  ninety- 
three,  as  amended  by  the  Act  of  April  first,  eighteen  hun- 
powera7dutiM,re^  dred  and  ninety-six;  and  all  of  the  provisions,  powers,  du- 
uabiiSS  'speci-  tics,  requirements,  and  liabilities  of  said  Act  of  March  sec- 
5^.  2^1893,^ and  ond,  eighteen  hundred  and  ninety- three,  as  amended  by 
1^, apply fo^his  the  Act  of  April  first,  eighteen  hundred  and  ninety-six, 
^^'  shall,  except  as  specifically  amended  by  this  Act,  apply  to 

this  Act. 


Act  of  April  14,  1910  [36  Stat,  at  L.,  298]. 
AN  ACT  To  supplement  "An  Act  to  promote  the  safety  of  em- 
ployees and  travelers  upon  railroads  by  compelling  common  car- 
riers engaged  in  interstate  commerce  to  equip  their  cars  with  auto- 
matic couplers  and  continuous  brakes  and  their  locomotives  with 
driving-wheel  brakes  and  for  other  purposes,"  and  other  safety 
appliance  Acts,  and  for  other  purposes. 

Be  it  enacted  hy  the  Senate  and  House  of  Representa- 
tives of  the  United  States  of  America  in  Congress  assem- 


ACT  OF  1910.  241 


Ued,  That  the  provisions  of  this  Act  shall  apply  to  rJg^app&i?'' 
every  common  carrier  and  every  vehicle  subject  to  the 
Act  of  March  seeond,  eighteen  hundred  and  ninety-three, 
as  amended  April  first,  eighteen  hundred  and  ninety-six, 
and  March  second,  nineteen  hundred  and  three,  com- 
monly known  as  the  "  Safety  Appliance  Acts.*' 

Sec.  2.  That  on  and  after  July  first,  nineteen  hundred    cars  to  b* 
and  eleven,  it  shall  be  unlawful  for  any  common  carrier  Hi  steps,  hand 
subject  to  the  provisions  of  this  Act  to  haul,  or  permit  to  running  board*; 
be  hauled  or  used  on  its  line  any  car  subject  to  the  pro- 
visions of  this  Act  not  equipped  with  appliances  provided 
for  in  this  Act,  to  wit:  All  cars  must  be  equipped  with 
secure  sill  steps  and  efficient  hand  brakes;  all  cars  re- 
quiring secure  ladders  and  secure  running  boards  shall 
be  equipped  with  such  ladders  and  running  boards,  and 
all   cars   having  ladders   shall   also   be   equipped   with 
secure  hand  holds  or  grab  irons  on  their  roofs  at  the  tops 
of  such  ladders :  Provided,  That  in  the  loading  and  haul- 
ing of  long  commodities,  requiring  more  than  one  car, 
the  hand  brakes  m.ay  be  omitted  on  all  save  one  of  the 
cars  while  they  are  thus  combined  for  such  purpose. 

Sec.  3.  That  within  six  months  from  the  passage  of,  commission  to 

r  fe  to  designate  num- 

this  Act  the  Interstate  Commerce  Commission,  after  hear-  ?®^'  dimensions. 

'  location,   and 

mg,  shall  designate  the  number,  dimensions,  location,  and^J^®^^'  |pp}}; 
manner  of  application  of  the  appliances  provided  for  by*^**^- 
section  two  of  this  Act  and  section  four  of  the  Act  of 
March  second,  eighteen  hundred  and  ninety-three,  and 
shaU  give  notice  of  such  designation  to  all  common  car- 
riers subject  to  the  provisions  of  this  Act  by  such  m.eans 
as  the  Commission  may  deem  proper,  and  thereafter  said 
number,  location,  dimensions,  and  manner  of  application 
as  designated  by  said  Commission  shaU  remain  as  the 
standards  of  equipment  to  be  used  on  all  cars  subject  to 
the  provisions  of  this  Act,  unless  changed  by  an  order  of 
said  Interstate  Commerce  Commission,  to  be  made  after 
fuU  hearing  and  for  good  cause  shown;  and  failure  to 
comply  with  any  such  requirement  of  the  Interstate  Com- 
merce Commission  shall  be  subject  to  a  like  penalty  as 
failure  to  comply  with  any  requirement  of  this  Act:  Pro-  ^®"«*  ^  ««*- 
vided,  That  the  Interstate  Commerce  Commission  may,  ®^^®^***- 
upon  full  hearing  and  for  good  cause,  extend  the  period 
within  which  any  common  carrier  shall  comply  with  the 
provisions  of  this  section  with  respect  to  the  equipment 
of  cars  actually  in  service  upon  the  date  of  the  passage 
50611—15 ^16 


242  SAFETY  APPLIANCE  ACTS. 

may*^™©*"!??  ^^  *'^^^  ^^^-     ^^^^  Commission  is  hereby  given  authority, 
he^t  of  draw-  ^f ter  hearing,  to  modify  or  change,  and  to  prescribe  the 
standard  height  of  drawbars  and  to  fix  -the  time  within 
which  such  modification  or  change  shall  become  effective 
ard^"}ght^of  fl-iid  obfigatory,  and  prior  to  the  time  so  fixed  it  shall  be 
drawbars  legal,    unlawful  to  usc  any  Car  or  vehicle  in  interstate  or  foreign 
traffic  which  does  not  comply  with  the  standard  now 
fixed  or  the  standard  so  prescribed,  and  after  the  time  so 
fixed  it  shall  be  unlawful  to  use  any  car  or  vehicle  in 
interstate  or  foreign  traffic  which  does  not  comply  with 
the  standard  so  prescribed  by  the  Commission. 
Penalty.  Sec.  4.  That  any  common  carrier  subject  to  this  Act 

using,  hauling,  or  permitting  to  be  used  or  hauled  on  its 
line  any  car  subject  to  the  requirements  of  this  Act  not 
equipped  as  provided  in  this  Act,  shall  be  liable  to  a 
penalty  of  one  hundred  dollars  for  each  and  every  such 
violation,  to  be  recovered  as  provided  in  section  six  of  the 
Act  of  March  second,  eighteen  hundred  and  ninety-three, 
as  amended  April  first,  eighteen  hundred  and  ninety-six: 
may  \iQh&n}Qd  to  Provided,  That  where  any  car  shall  have  been  properly 
repair  point.  equipped,  as  provided  in  this  Act  and  the  other  Acts  men- 
tioned herein,  and  such  equipment  shall  have  become  de- 
fective or  insecure  while  such  car  was  being  used  by  such 
carrier  upon  its  line  of  railroad,  such  car  may  be  hauled 
from  the  place  where  such  equipment  was  first  discovered 
to  be  defective  or  insecure  to  the  nearest  available  point 
where  such  car  can  be  repaired,  without  liability  for  the 
penalties  imposed  by  section  four  of  this  Act  or  section  six 
of  the  Act  of  March  second,  eighteen  hundred  and  ninety- 
three,  as  amended  by  the  Act  of  April  first,  eighteen  hun- 
dred and  ninety-six,  if  such  movement  is  necessary  to 
make  such  repairs  and  such  repairs  can  not  be  made  ex- 
uevedfromiiabii-cept  at  such  repair  point;  and  such  movement  or  hauling 
iSu^'^  ^^*^  °^  of  such  car  shall  be  at  the  sole  risk  of  the  carrier,  and  noth- 
ing in  this  section  shall  be  construed  to  relieve  such  carrier 
from  liability  in  any  remedial  action  for  the  death  or 
injury  of  any  railroad  employee  caused  to  such  employee 
by  reason  of  or  in  connection  with  the  movement  or  haul- 
ing of  such  car  with  equipment  w  hich  is  defective  or  inse- 
cure or  which  is  not  maintained  in  accordance  with  the 
requirements  of  this  Act  and  the  other  Acts  herein  re- 
Hauiing  by f erred  to;  and  nothing  in  this  proviso  shall  be  construed 
to  permit  the  hauling  of  defective  cars  by  means  of  chains 
instead  of  drawbars,  in  revenue  trains  or  in  association 
with  other  cars  that  are  commercially  used,  unless  such 
defective  cars  contain  live  stock  or  "perishable"  freight. 


ACT  OF  1910— SUNDEY  CIVIL  ACTS.  243 


Sec.  5.  That  except  that,  within  the  limits  specified  in  lievS^ISm^pen- 
the  preceding  section  of  this  Act,  the  movement  of  a  carJ'*^'sg®g*^^*o?e 
with  defective  or  insecure  equipment  may  be  made  with-  ^™«i- 
out  incurring  the  penalty  provided  by  the  statutes,  but 
shall  in  all  other  respects  be  unlawful,  nothing  in  this  Act 
shall  be  held  or  construed  to  relieve  any  common  carrier, 
the  Interstate  Commerce  Commission,  or  any  United 
States  attorney  from  any  of  the  provisions,  powers,  du- 
ties, liabilities,  or  requirements  of  said  Act  of  March 
second,  eighteen  hundred  and  ninety-three,  as  amended 
by  the  Acts  of  April  first,  eighteen  hundred  and  ninety-six, 
and  March  second,  nineteen  hundred  and  three ;  and,  ex- 
cept as  aforesaid,  all  of  the  provisions,  powers,  duties,  re- 
quirements, and  liabilities  of  said  Act  of  March  second, 
eighteen  hundred  and  ninety-three,  as  amended  by  the 
Acts  of  April  first,  eighteen  hundred  and  ninety-six,  and 
March  second,  nineteen  hundred  and  three,  shall  apply  to 
this  Act. 

Sec.  6.  That  it  shall  be  the  duty  of  the  Interstate  Com-    Enforcement, 
merce  Commission  to  enforce  the  provisions  of  this  Act, 
and  all  powers  heretofore  granted  to  said  Commission  are 
hereby  extended  to  it  for  the  purpose  of  the  enforcement 
of  this  Act. 

Excerpt  from  the  Sundry  Civil  Act  of  March  4,  1911  [36  Stat, 
at  L.,  1397]. 

That  the  jurisdiction  of  the  Interstate  Commerce  Cora- j^Jy<*  ™^™^8^|^, 
mission  to  extend  the  period  within  which  any  common  piemStor^^Acr 
carrier  shall  comply  with  the  provisions  of  section  three 
of  the  Act  entitled,  "An  Act  to  supplement  'An  Act  to 
promote  the  safety  of  employees  and  travelers  upon 
railroads  by  compelling  common  carriers  engaged  in 
interstate  commerce  to  equip  their  cars  with  automatic 
couplers  and  continuous  brakes  and  their  locomotives 
with  driving-wheel  brakes,  and  for  other  purposes,'  and 
other  safety-appliance  Acts,  and  for  other  purposes,"  ap- 
proved April  fourteenth,  nineteen  hundred  and  ten,  shall 
apply  to  cars  actually  placed  in  service  between  the  date 
of  the  passage  of  said  Act  and  the  first  day  of  July,  nine- 
teen hundred  and  eleven,  in  the  same  manner  and  to  the 
same  extent  that  it  applies  to  cars  actually  in  service  upon 
the  date  of  the  passage  of  said  Act. 

The  Interstate  Commerce  Commission  is  authorized  by  the  Sundry  Civil  Act  of  June 
28, 1902 132  Stat,  at  L.,  444],  to  employ  "inspectors  to  execute  and  enforce  the  require- 
ments of  the  Safety  Appliance  Acts." 


ORDERS  OF  THE  INTERSTATE  COMMERCE  COMMISSION. 
Order  of  June  6,  1010,  In  re  Minimum  Percentage  of  Power  Brakes. 

The  Commission  having  under  consideration  the  question  of 
requiring  an  increase  in  the  minunum  percentage  of  power  brakes 
to  be  used  and  operated  on  trains  and  railroads  engaged  in  inter- 
state commerce,  as  provided  by  section  2  of  the  Act  of  Marcli  2, 
1903,  and  it  appearing  to  the  Commission  after  full  hearing  had 
on  May  5,  1909,  due  notice  of  which  was  given  all  common  carriers, 
owners,  and  lessees  engaged  in  interstate  commerce  by  railroads  in 
the  United  States,  and  at  which  time  all  interested  parties  were 
given  an  opportunity  to  be  heard  and  submit  their  views,  that  to 
more  fully  secure  the  objects  of  the  Act  to  promote  the  safety  of 
employees  and  travelers  on  railroads,  the  minimum  percentage  of 
power-brake  cars  to  be  used  in  trains,  as  established  by  its  order 
of  November  15,  1905,  should  be  further  increased: 

It  is  ordered,  That  on  and  after  September  1,  1910,  on  all  railroads 
used  in  interstate  commerce,  whenever,  as  required  by  the  Safety 
Appliance  Act  as  amended  March  2,  1903,  any  train  is  operated 
with  power  or  train  brakes,  not  less  than  85  per  cent  of  the  cars 
of  such  train  shall  have  their  brakes  used  and  operated  by  the  engi- 
neer of  the  locomotive  drawing  such  train,  and  all  power-brake  cars 
in  every  such  train  which  are  associated  together  with  the  85  per 
cent  shall  have  their  brakes  so  used  and  operated. 

Order  of  October  10,  1910,  In  re  Standard  Height  of  Drawbars. 

Whereas,  by  the  tliird  section  of  an  Act  of  Congress  approved 
April  14,  1910,  entitled  ''An  Act  to  supplement  'An  Act  to  promote 
the  safety  of  employees  and  travelers  upon  railroads  by  compelling 
common  carriers  engaged  in  inteistate  commerce  to  equip  their  cars 
with  automatic  couplers  and  continuous  brakes  and  their  locomo- 
tives with  driving-wheel  brakes  and  for  other  purposes/  and  other 
safety  appliance  Acts,  and  for  other  puiposes,"  it  is  provided,  among 
other  things,  that  the  Interstate  Commerce  Commission  is  hereby 
given  authority ,^  after  hearing,  to  modify  or  change  and  to  prescribe 
the  standard  height  of  drawbars  and  to  fix  the  time  within  which 
such  modification  or  change  shall  become  effective  and  obligatory; 
and 

Whereas,  a  hearing  in  the  matter  of  any  modification  or  change 
in  the  standard  height  of  drawbars  was  held  before  the  Interstate 
244 


OEDERS  AND  ADMINISTEATIVE  ETJIHrGS.  245 

Commerce  Commission  at  its  office  ia  Washington,  D.  C,  on  June 
7,  1910: 

Now,  therefore,  in  pursuance  of  and  in  accordance  with  the  pro- 
visions of  said  section  3  of  said  Act, 

It  is  ordered,  That  (except  on  cars  specified  in  the  proviso  in 
section  6  of  the  Safety  Appliance  Act  of  March  2,  1893,  as  the  same 
was  amended  April  1,  1896),  the  standard  height  of  drawbars  here- 
tofore designated  in  compliance  with  law  is  hereby  modified  and 
changed  in  the  manner  hereinafter  prescribed,  to  wit:  The  maximum 
height  of  drawbars  for  freight  cars  measured  perpendicularly  from 
the  level  of  the  tops  of  rails  to  the  centers  of  drawbars  for  standard- 
gauge  railroads  in  the  United  States  subject  to  said  Act  shall  be 
34^  inches,  and  the  minimum  height  of  drawbars  for  freight  cars 
on  such  standard-gauge  railroads  measured  in  the  same  manner 
shall  be  31i  inches,  and  on  narrow-gauge  railroads  in  the  United 
States  subject  to  said  Act  the  maximum  height  of  drawbars  for 
freight  cars  measured  from  the  level  of  the  tops  of  rails  to  the  cen- 
ters of  drawbars  shall  be  26  inches,  and  the  minimum  height  of 
drawbars  for  freight  cars  on  such  narrow-gauge  railroads  measured 
in  the  same  manner  shall  be  23  inches,  and  on  2-foot-gauge  railroads 
in  the  United  States  subject  to  said  Act  the  maximum  height  of 
drawbars  for  freight  cars  measured  from  the  level  of  the  tops  of 
rails  to  the  centers  of  drawbars  shall  be  17i  inches,  and  the  mini- 
mum height  of  drawbars  for  freight  cars  on  such  2-foot-gauge  rail- 
roads measured  in  the  same  manner  shall  be  14^  inches. 

And  it  is  further  ordered,  That  such  modification  or  change  shall 
become  effective  and  obligatory  December  31,  1910. 

ADMINISTBATIVE  RULING  OF  THE  INTERSTATE  COMMERCE 

COMMISSION. 

May  4,  1908,  No.  67;  Handholds  on  Passenger  Cars, — The  law 
makes  no  distinction  between  passenger  and  freight  cars,  and  hand- 
holds must  therefore  be  placed  on  the  ends  of  passenger  cars  and 
cabooses. 


THE  HOUES  OF  SERVICE  ACT. 

Act  of  March  4,  1907  [34  Stat,  at  L.,  1415]. 

AN  ACT  To  promote  the  safety  of  employees  and  travelers  upon  rail- 
roads by  limiting  tlie  hours  of  service  of  employees  thereon. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives 

of  the    United  States  of  America  in  Congress  assembled^ 

Common    car-  That  the  provisions  of  this  Act  shall  apply  to  any  comit]  on 

tiers     and     em-  .  '■  .  \     •        m  i  i 

pioyees  subject  carrier  or  carriers,  their  oincers,  agents,  and  employees, 
engaged  in  the  transportation  of  passengers  or  property 
by  railroad  in  the  District  of  Columbia  or  any  Territory 
of  the  United  States,  or  from  one  State  or  Territory  of 
the  United  States  or  the  District  of  Columbia  to  any 
other  State  or  Territory  of  the  United  States  or  the  Dis- 
trict of  Columbia,  or  from  any  place  in  the  United  States 
to  an  adjacent  foreign  country,  or  from  any  place  in  the 
United  States  through  a  foreign  country  to  any  other 

term*  "raiSdd/' P^*^®  in  the  United  States.  The  term  "  railroad  "  as  used 
in  this  Act  shall  include  all  bridges  and  ferries  used  or 
operated  in  connection  with  any  railroad,  and  also  all  the 
road  in  use  by  any  common  carrier  operating  a  railroad, 
whether  owned  or  operated  under  a  contract,  agreement, 

term**e°mp!oy-^^  lease;  and  the  term  ''employees''  as  used  in  this  Act 

®«*"  shall  be  held  to  mean  persons  actually  engaged  in  or  con- 

nected with  the  movement  of  any  train. 

Sec.  2.  That  it  shall  be  unlawful  for  any  common  car- 
rier, its  officers  or  agents,  subject  to  this  Act  to  require  or 
permit  any  employee  subject  to  this  Act  to  be  or  remain 
sixteen  ^^urs  on  duty  for  a  longer  period  than  sixteen  consecutive 

continuous  serv-^ours,  and  whcncvcr  any  such  employee  of  such  common 

ice  of  trainmen.  '  "^  ,  i  i  *  - 

carrier  shall  have  been  continuously  on  duty  for  sixteen 
hours  he  shall  be  relieved  and  not  required  or  permitted 
Ten  j^^^^^g  again  to  go  on  duty  until  he  has  had  at  least  ten  consecu- 
duty.  tive  hours  off  duty;  and  no  such  employee  who  has  been 

on  duty  sixteen  hours  in  the  aggregate  in  any  twenty-four- 
hour  period  shall  be  required  or  permitted  to  continue  or 
again  go  on  duty  without  having  had  at  least  eight  con- 
te1??iftph^ndsecutive  hours  off  duty:  Provided,  That  no  operator,  train 
teig)hone  opera- ^^^^^j^^^^^  ^^  ^^^^^  employee  who  by  the  use  of  the  tele- 

246 


ACT  OF  1907.  247 


graph  or  telephone  dispatches,  reports,  transmits,  re- 
ceives, or  delivers  orders  pertaining  to  or  afiFecting  train 
movements  shall  be  required  or  permitted  to  be  or  remain 
on  duty  for  a  longer  period  than  nine  hours  in  any  twenty- 
four-hour  period  in  all  towers,  oflBces,  places,  and  stations 
continuously  operated  night  and  day,  nor  for  a  longer 
period  than  thirteen  houre  in  all  towers,  offices,  places, 
and  stations  operated  only  during  the  daytime,  except  in 
case  of  emergency,  when  the  employees  namied  in  this 
proviso  may  be  permitted  to  be  and  remain  on  duty  for 
four  additional  hours  in  a  twenty-four-hour  period  on  not 
exceeding  three  days  in  any  week:  Provided  further,  The^j^^o^J^^^l^^on 
Interstate  Commerce  Commission  may  after  full  hearing p®"^- 
in  a  particular  case  and  for  good  cause  shown  extend  the 
period  within  which  a  common  carrier  shall  comply  with 
the  provisions  of  this  proviso  as  to  such  case. 

Sec.  3.  That  any  such  common  carrier,  or  any  officer  ^«°***y- 
or  ag  nt  thereof,  requiring  or  permitting  any  employee 
to  go,  be,  or  remain  on  duty  in  violation  of  the  second 
section  hereof,  shall  be  liable  to  a  penalty  of  not  to 
exccc  d  five  hundred  dollars  for  each  and  every  violation, 
to  bo  recovered  in  a  suit  or  suits  to  be  brought  by  the 
United  States  district  attorney  in  the  district  court  of  ^"***^"°°*-  . 
the  United  States  having  jurisdiction  in  the  locafity  where 
such  violation  shall  have  been  committed;  and  it  shall  be 
the  duty  of  such  district  attorn<^  y  to  bring  such  suits  upon 
satisfactory  information  being  lodged  with  him;  but  no 
such  suit  shall  be  brought  after  the  expiration  of  one 
year  from  the  date  of  such  violation;  and  it  shall  also  be 
the  duty  of  the  Interstat"  Commrrce  Commission  to  lodge  ^ 
with  the  proper  district  attorneys  information  of  any  such 
violations  as  may  come  to  its  knowledge.  In  all  prose- 
cutions under  this  Act  the  common  carrier  shall  be  deemed 
to  have  had  knowl  dge  of  aU  acts  of  all  its  officers  and 
agents:  Provided,  That  the  provisions  of  this  Act  shall  not  acSSents'etc^^* 
apply  in  any  case  of  casualty  or  unavoidable  accident  or 
the  act  of  God;  nor  where  the  d<  lay  was  the  result  of  a 
cause  not  known  to  the  carri-  r  or  its  officer  or  agent  in 
charge  of  such  employee  at  the  time  said  employee  left 
a  terminal,  and  which  could  not  have  been  foreseen: 
Provided  Jurther,  That  th^^  provisions  of  this  Act  shall  not  crZl  *  ^  '^  * "" « 
apply  to  the  crews  of  wrecking  or  relief  trains. 

Sec.  4.  It  shall  be  the  duty  of  the  Interstate  Commerce    Enforcement. 
Commission  to  execute  and  enforce  the  provision  of  this 


248  HOTTES  OF  SEEVICE  ACT. 

Act,  and  all  powers  granted  to  the  Interstate  Commerce 
Commission  are  hereby  extended  to  it  in  the  execution 
of  this  Act. 

Sec.  5.  That  this  Act  shall  take  effect  and  be  in  force 
one  year  after  its  passage. 

Excerpt  from  Section  20  of  the  Act  [to  regulate  commerce]  of 
February  4,  1887  [24  Stat,  at  L.,  3791,  as  amended  June  29, 
1906  [34  Stat,  at  L.,  684],  and  June  18,  1910  [36  Stat,  at  L., 
639]. 

Said  detailed  reports  shall  contain  all  the  required  sta- 
tistics for  the  period  of  twelve  months  ending  on  the 
thirtieth  day  of  June  in  each  year,  or  on  the  thirty-first 
day  of  December  in  each  year  if  the  Commission  by  order 
substitute  that  period  for  the  year  ending  Jmie  thirtieth 
and  shall  be  made  out  under  oath  and  filed  with  the 
Commission  at  its  office  in  Washington  within  three 
months  after  the  close  of  the  year  for  which  the  report  is 
made,  unless  additional  time  be  granted  in  any  case  by 
the  Commission;  and  if  any  carrier,  person,  or  corpora- 
tion subject  to  the  provisions  of  this  Act  shall  fail  to  make 
and  file  said  annual  reports  within  the  time  above  &peci- 
fied,  or  within  the  time  extended  by  the  Commission,  for 
making  and  filing  the  same,  or  shaD  fail  to  make  specific 
answer  to  any  question  authorized  by  the  provisions  of 
this  section  within  thirty  days  from  the  time  it  is  lawfully 
required  so  to  do,  such  party  shall  forfeit  to  the  United 
States  the  sum  of  one  hundred  dollars  for  each  and  every 
day  it  shall  continue  to  be  in  default  with  respect  thereto. 
antoOTked^fo^JThe  Commission  shall  also  have  authority  by  general  or 
qi^ro^perfcxiicai  gpecial  Orders  to  require  said  carriers,  or  any  of  them,  to 
file  monthly  reports  of  earnings  and  expenses,  and  to  file 
periodical  or  special,  or  both  periodical  and  special,  re- 
ports concerning  any  matters  about  which  the  Commis- 
sion is  authorized  or  required  by  this  or  any  other  law  to 
inquire  or  to  keep  itself  informed  or  which  it  is  required 
to  enforce ;  and  such  periodical  or  special  reports  shall  be 
under  oath  whenever  the  Commission  so  requires;  and  if 
any  such  carrier  shall  fail  to  make  and  file  any  such 
periodical  or  special  report  within  the  time  fixed  by  the 
Commission,  it  shall  be  subject  to  the  forfeitures  last 
above  provided. 


ORDERS  OF  THE  INTERSTATE  COMMERCE  COMMISSION. 

Order  of  June  28,  1911,  In  re  Method  and  Form  of  Monthly  Reports  of 
Hours  of  Service  of  Employees  on  Railroads  Subject  to  the  Act  of  March  4, 
1907. 

The  method  and  form  of  monthly  reports  of  hours  of  service  of 
employees  upon  railroads  subject  to  the  Act  of  March  4, 1907,  having 
been  considered  by  the  Commission: 

It  is  ordered,  That  aU  carriers  subject  to  the  provisions  of  the  Act 
entitled  "An  Act  to  promote  the  safety  of  employees  and  travelers 
upon  railroads  by  limiting  the  hours  of  service  of  employees  thereon," 
approved  March  4,  1907,  report  within  30  days  after  the  end  of  each 
month,  under  oath,  all  instances  where  employees  subject  to  said  Act 
have  been  on  duty  for  a  longer  period  than  that  provided  in  said  Act. 

It  is  further  ordered.  That  the  accompanying  forms  entitled  ''Inter- 
state Commerce  Commission  Hours  of  Service  Keport,"  and  the 
method  embodied  in  the  instructions  therein  set  forth,  be,  and  the 
same  are  hereby,  adopted  and  prescribed;  and  all  common  carriers 
subject  to  said  Act  are  hereby  notified  to  use  and  follow  the  said  pre- 
scribed forms  and  method  in  making  monthly  reports  of  hours  of 
service  of  employees  on  duty  for  a  longer  period  than  that  named  in 
said  Act,  commencing  with  and  making  the  first  report  for  the  month 
of  July,  1911. 

And  it  is  further  ordered,  That  copies  of  said  forms,  together  with 
a  copy  of  this  order,  be  forthwith  served  upon  all  common  carriers 
subject  to  said  Act. 

Order  of  April  8,  1912,  In  re  Alteration  in  the  Method  and  Form  of  Monthly 
Reports  of  Hours  of  Service  of  Employees  on  Railroads  Subject  to  the 
Act  of  March  4,  1907. 

The  matter  of  alteration  in  the  method  and  form  of  monthly 
reports  of  hours  of  service  of  employees  upon  railroads  subject  to  the 
Act  of  March  4,  1907,  being  under  consideration: 

It  is  ordered.  That  the  accompanying  forms  entitled  *' Interstate 
Commerce  Commission  Hours  of  Service  Report,"  and  designated 
as  Form  No.  1. — Oath  and  summary  for  use  when  there  is  excess 
service;  Form  No.  8. — Oath  for  use  when  there  is  no  excess  service; 
Form  No.  2. — Employees  on  duty  moro  than  16  consecutive  hours; 
Form  No.  3. — Employees  returned  to  duty  after  16  hours  continuous 
service,  without  10  consecutive  hours  off  duty;  Form  No.  4. — Em- 

249 


250  HOURS  OF  SERVICE  ACT. 

ployees  returned  to  duty,  after  aggregate  service  of  16  hours,  without 
8  consecutive  hours  off  duty;  Form  No.  5. — Employees  continued 
on  duty  after  aggregate  service  of  16  hours;  Form  No.  6. — Employees 
at  continuously  operated  day-and-night  offices,  who  dispatch,  r.  port, 
transmit,  receive  or  deliver  orders  affecting  train  movements,  and  who 
were  on  duty  more  than  9  hours  in  any  24-hour  period ;  Form  No.  7. — 
Employees  at  offices  operated  only  during  the  daytime,  or  not  to 
exceed  13  hours  in  a  24-hour  period,  who  dispatch,  report,  transmit, 
receive,  or  deliver  orders  affecting  train  movements,  and  who  are  on 
duty  for  a  longer  period  than  13  hours  in  any  24-hour  period;  and 
the  method  embodied  in  the  instructions  therein  set  forth,  be,  and 
the  same  are  hereby,  adopted  and  prescribed;  and  all  common 
carriers  subject  to  said  Act  are  hereby  notified  to  use  and  follow  the 
said  prescribed  forms  and  method  in  making  monthly  reports  of 
hours  of  service  of  employees  on  duty  for  a  longer  period  than  that 
named  in  said  Act,  commencing  with  and  making  the  first  report  for 
the  month  of  July,  1912. 

Avd  it  is  further  ordered,  That  copies  of  said  forms,  together  with  a 
copy  of  this  order,  be  forthwith  served  upon  all  common  carriers 
subject  to  said  Act. 

ADMINISTRATIVE     BUUNOS    OF    THE    INTERSTATE     COMMERCE 

COMMISSION. 

March  16,  1908.  No.  287.  General  Interpretation  of  the 
Hours  of  Service  Act. — (a)  The  provisions  of  this  Act  apply  to  all 
common  carriers  by  railroad  in  the  District  of  Columbia,  or  in  any 
Territory  of  the  United  States,  or  engaged  in  the  movement  of  inter- 
state or  foreign  traffic;  and  to  aU  employees  of  such  common  carriers 
who  are  engaged  in  or  connected  with  the  movement  of  any  train 
carrying  traffic  in  the  District  of  Columbia,  or  in  any  Territory,  or 
carrying  interstate  or  foreign  traffic.     [See  Rule  56.] 

(6)  Sec.  2.  The  requirement  for  ten  consecutive  hours  off  duty 
applies  only  to  such  employees  as  have  been  on  duty  for  sixteen  con- 
secutive hours.  The  requirement  for  eight  consecutive  hours  off 
duty  applies  only  to  employees  who  have  not  been  on  duty  sixteen 
consecutive  hours,  but  have  been  on  duty  sixteen  hours  in  the  aggre- 
gate out  of  a  twenty-four-hour  period.  Such  twenty-four-hour 
period  begins  at  the  time  the  employee  first  goes  on  duty  after  having 
had  at  least  eight  consecutive  hours  off  duty.  The  term  "on  duty" 
includes  all  the  time  during  which  the  employee  is  performing  service, 
or  is  held  responsible  for  performance  of  service.  An  employee  goes 
*'on  duty"  at  the  time  he  begins  to  perform  service  or  at  which  he 
is  required  to  be  in  readiness  to  perform  service,  and  goes  **off  duty'* 
at  the  time  he  is  reheved  from  service  and  from  responsibihty  for 
performance  of  service.     [Qualified  by  Rule  74.] 


ADMINISTRATIVE  EUIINGS.  251 

(c)  The  Act  does  not  specify  the  classes  of  employees  that  are 
subject  to  its  terms.  All  employees  engaged  in  or  connected  with 
the  movement  of  any  train  as  described  in  section  1  are  within  its 
scope.  Train  dispatchers,  conductors,  engineers,  telegraphers,  fire- 
men, brakemen,  train  baggagemen  who,  by  rules  of  carriers,  are 
required  to  perform  any  duty  in  connection  with  the  movement  of 
trains,  yardmen,  switch  tenders,  tower  men,  block-signal  operators 
etc.,  come  within  the  provisions  of  the  statute.  [Quahfied  by  Rules 
108  and  275.     See  also  Rule  88.] 

(d)  The  proviso  in  section  2  covers  every  employee  who,  by  the 
use  of  the  telegraph  or  telephone,  handles  orders  pertaining  to  or 
affecting  train  movements.  In  order  to  preserve  the  obvious  intent 
of  the  law  this  provision  must  be  construed  to  include  all  employees 
who,  by  the  use  of  an  electrical  ciu-rent,  handle  train  orders  or  signals 
which  control  movements  of  trains.     [See  Rule  88.] 

(e)  The  prime  purpose  of  this  law  is  to  secure  additional  safety  by 
preventing  employees  from  working  longer  hours  than  those  specified 
in  the  Act.  Therefore  a  telegraph  or  telephone  operator  who  is 
employed  in  a  night  and  day  office  may  not  be  required  to  perform 
duty  in  any  capacity  or  of  any  kind  beyond  nine  hours  of  total  service 
in  any  twenty-four  hour  period. 

(/)  The  phrase  'lowers,  offices,  places,  and  stations"  is  interpreted 
to  mean  particular  and  definite  locations.  The  purpose  of  the  law 
and  of  the  proviso  for  nine  hours  of  service  may  not  be  avoided  by 
erecting  offices,  stations,  depots,  or  buildings  in  close  proximity  to 
each  other  and  operating  from  one  a  part  of  the  day  while  the  other  is 
closed,  and  vice  versa.  The  statute  is  remedial  in  its  intent  and  must 
have  a  broad  construction  so  that  the  purpose  of  the  Congress  may 
not  be  defeated. 

ig)  The  Commission  interprets  the  phrase  '' continuously  operated 
night  and  day''  as  applying  to  all  offices,  places,  and  stations  oper- 
ated during  a  portion  of  the  day  and  a  portion  of  the  night  a  total 
of  more  than  thirteen  hours. 

The  phrase  ** operated  only  during  the  daytime"  refers  to  stations 
which  are  operated  not  to  exceed  thirteen  hours  in  a  twenty-four- 
hour  period,  and  is  not  considered  as  meaning  that  the  operator 
thereat  may  be  employed  only  during  the  daytime. 

(h)  The  Act  provides  that  operators  employed  at  night  and  day 
stations  or  at  daytime  stations  may,  in  case  of  emergency,  be  required 
to  work  four  additional  hours  on  not  exceeding  three  days  in  any 
week.  Manifestly,  the  emergency  must  be  real  and  one  against  which 
the  carrier  can  not  guard.  "Tn  any  week"  is  construed  to  mean  in 
any  calendar  week,  beginning  with  Sunday. 

(i)  Sec.  3.  The  instances  in  which  the  Act  will  not  apply  include 
only  such  occurrences  as  could  not  be  guarded  against;  those  which 
involved  no  neglect  or  lack  of  precaution  on  the  part  of  the  carrier, 


262  HOURS  OF  SERVICE  ACT. 


its  agents,  or  officers;  and  they  serve  to  waive  the  application  of  the 
law  to  employees  on  trains  only  until  such  employees,  so  delayed, 
reach  a  terminal  or  relay  point.     [See  Rule  88.] 

'Casualty/'  like  its  synonyms  "accident"  and  ** misfortune, '*  may 
proceed  or  result  from  negU^ence  or  other  cause  known  or  unknown. 
[Words  and  Phrases  JvdidaUy  Defined,  vol.  2,  1003.] 

''Act  of  God."  Any  accident  due  to  natural  causes  directly  and 
exclusively  without  human  intervention,  such  as  could  not  have  been 
prevented  by  any  amount  of  foresight,  and  pains,  and  care  reasonably 
to  have  been  expected.     [Bouvier^s  Law  Dictionary,  vol.  1,  79.] 

(j)  It  will  be  noted  that  the  penalties  for  violation  of  this  Act  are 
against  the  "common  carriers,  or  any  officer  or  agent  thereof,  requir- 
ing or  permitting  any  employee  to  go,  be,  or  remain  on  duty"  in 
violation  of  the  law.  It  is  clear  that  the  officers  and  agents  of  car- 
riers who  are  liable  to  the  penalties  provided  in  the  Act  are  those 
who  have  official  direction  or  control  of  the  employees;  and  that  the 
penalties  do  not  attach  to  the  employees  who,  subject  to  such  super- 
vision or  control,  perform  the  service  prohibited. 

(k)  Sec.  4.  To  enforce  this  Act  the  Interstate  Commerce  Commis- 
sion has  all  the  powers  which  have  been  granted  to  it  for  the  enforce- 
ment of  the  Act  to  regulate  commerce,  including  authority  to  appoint 
employees,  to  require  reports,  to  examine  books,  papers,  and  docu- 
ments, to  administer  oaths,  to  issue  subpoenas,  and  to  interrogate 
witnesses. 

April  7, 1908.  No.  56.  Street  Railways. — Upon  inquiry  whether 
the  Hours  of  Service  Law  applies  to  electric  street  car  hues  which  are  in- 
terstate carriers:  Held,  That  it  applies  to  all  railroads  subject  to  the 
provisions  of  the  Act  to  regulate  commerce,  as  amended,  including 
street  railroads  when  ei^aged  in  interstate  commerce.  [See  Rule 
287.] 

May  6,  1908,  No.  74.  Deadheading. — Employees  deadheading 
on  passenger  trains  or  on  freight  trains  and  not  required  to  perform, 
and  not  held  responsible  for  the  performance  of,  any  service  or  duty 
in  connection  with  the  movement  of  the  train  upon  which  they  are 
deadheading,  are  not  while  so  deadheading  "on  duty"  as  that  phrase 
is  used  in  the  Act  regulating  the  hours  of  labor.     [See  Rule  287-6.] 

June  25,  1908.  No.  88.  Provisos  in  Sections  2  and  3. — (a)  The 
specific  proviso  [in  section  2]  of  the  law  in  regard  to  hours  of  service  is: 

"That  no  operator,  train  dispatcher,  or  other  employee  who  by  the 
use  of  the  telegraph  or  telephone  dispatches,  reports,  transmits,  re- 
ceives, or  delivers  orders  pertaining  to  or  affecting  train  movements 
shall  be  required  or  permitted  to  be  or  remain  on  duty  for  a  longer 
period  than  nine  hours  in  any  twenty-four-hour  period  in  aU  towers, 
offices,  places,  and  stations  continuously  operated  night  and  day,  nor 
for  a  longer  period  than  thirteen  hours  in  all  towers,  offices,  places, 
and  stations  operated  only  during  the  daytine,  except  in  case  of 
emergency,  when  the  employees  named  in  this  proviso  may  be  per- 
mitted to  be  and  remain  on  duty  for  four  additional  hours  in  a 
twenty-four-hom-  period  or  not  exceeding  three  days  in  any  week." 


ADMnnSTEATIVE  RULINGS.  253 

These  provisions  apply  to  employees  in  towers,  offices,  places,  and 
stations,  and  do  not  include  train  employees  who,  by  the  terms  of  the 
law,  are  permitted  to  be  or  remain  on  duty  sixteen  hours  consecu- 
tively or  sixteen  hours  in  the  aggregate  in  any  twenty-four-hour 
period,  and  who  may  occasionally  use  telegraph  or  telephone  instru- 
ments for  the  receipt  or  transmission  of  orders  affectmg  the  move- 
ment of  trains.     [See  Rule  287.] 

(h)  Section  3  of  the  law  provides  [inter  alia]  that: 

*^The  provisions  of  this  Act  shall  not  apply  in  any  case  of  casualty 
or  unavoidable  accident  or  the  act  of  God;  nor  where  the  delay  was 
the  result  of  a  cause  not  known  to  the  carrier  or  its  officer  or  agent  in 
charge  of  such  employee  at  the  time  said  employee  left  a  terminal, 
and  which  could  not  have  been  foreseen/' 

Any  employee  so  delayed  may  therefore  continue  on  duty  to  the 
terminal  or  end  of  that  run.  The  proviso  quoted  removes  the  appli- 
cation of  the  law  to  that  trip.     [See  Rule  287.] 

November  10,  1908.  No.  108.  Ferry  Employees.  The  Hours  of 
Service  Law  does  not  apply  to  employees  on  a  ferry,  even  though 
the  ferry  be  owned  by  a  railroad  company.  The  law  applies  to 
employees  connected  with  the  movement  of  trains,  and  hence  does 
not  embrace  employees  engaged  only  in  the  operation  of  a  ferry. 
This  ruling  does  not  apply  to  car  ferries.     [See  Rule  287.] 

Ajpril  4,  1910.  No.  275.  Train  Baggagemen.- The  provisions 
of  section  1  of  the  Hours  of  Service  Law  apply  to  train  baggagemen 
who  are  employees  of  the  railway  company  and  who  are  required  by 
the  rules  of  the  company  to  perform  or  to  hold  themselves  in  readi- 
ness, when  called  upon,  to  perform  any  duty  connected  with  the 
movement  of  any  train.     [See  Rules  74  a  ad  287.] 

February  12,  1912.  No.  342.  Use  by  Trainmen  of  the  Tele- 
graph OR  Telephone. — A  trainman  required  by  the  rules  of  the 
carrier,  in  conjunction  with  his  duties  as  trainmen,  to  send,  receive, 
or  deliver  orders  affecting  the  movement  of  trains  comes  within 
the  proviso  of  section  2  of  the  Hours  of  Service  Act,  and  therefore  a 
carrier  may  not  require  a  trainman,  who  has  been  on  duty  longer 
than  the  limit  of  time  fixed  for  a  telegraph  or  telephone  operator,  to 
send,  receive,  or  deUver  orders  affecting  the  movement  of  trains  as 
a  part  of  the  duties  regularly  assigned  to  him. 

But  upon  inquiry  whether  the  practice  of  requiring  conductors  of 
trains  delayed  at  stations  where  there  is  no  regularly  assigned  tele- 
graph or  telephone  operator  on  duty,  and  conductors  of  trains  about 
to  be  overtaken  by  superior  trains,  to  telephone  or  telegraph  the  train 
despatcher  for  instructions  is  in  accord  with  the  Act  and  with  the 
Commission's  order  of  interpretation  of  June  25,  1908:  Held,  That 
a  trainmen  who  has  been  on  duty  for  more  than  9  hours  or  for  more 
than  13  hours  is  not  prohibited  from  occasionally  using  the  telegraph 
or  telephone  to  meet  an  emergency. 


THE  ASH-PAN  ACT. 
Act  of  May  30,  1908  [35  Stat,  at  L.,  476]. 

AN  ACT  To  promote  the  safety  of  employees  on  railroads. 

Be  it  enacted  hy  the  Senate  and  House  of  Representor- 

tives  of  the  United  States  of  America  in  Congress  assem- 

Ash-pan  equip.  &ZecZ,  That  On  and  after  the  first  day  of  January,  nineteen 

Stat©  commerce. '  hundred  and  ten,  it  shall  be  unlawful  for  any  common 
carrier  engaged  in  interstate  or  foreign  commerce  by  rail- 
road to  use  any  locomotive  in  moving  interstate  or  foreign 
traffic,  not  equipped  with  an  ash  pan,  which  can  be 
dumped  or  erriptied  and  cleaned  without  the  necessity  of 
any  employee  going  under  such  locomotive. 

m^?'^S^^Si^     Seo.  2.  That  on  and  after  the  first  day  of  January, 

tricfofSumbS"^^^^®^  hundred  and  ten,  it  shall  be  unlawful  for  any 
common  carrier  by  railroad  in  any  Territory  of  the 
United  States  or  the  District  of  Columbia  to  use  any 
locomotive  not  equipped  with  an  ash  pan,  which  can  be 
dumped  or  emptied  and  cleaned  without  the  necessity 
of  any  employee  going  under  such  locomotive. 
Penalty.  Seo.  3.  That  any  such  common  carrier  using  any  loco- 

motive in  violation  of  any  of  the  provisions  of  this  Act 
shall  be  Hable  to  a  penalty  of  two  hundred  dollars  for 
each  and  every  such  violation,  to  be  recovered  in  a  suit  or 
suits  to  be  brought  by  the  United  States  district  attorney 
in  the  district  court  of  the  United  States  having  jurisdic- 
tion in  the  locaUty  where  such  violation  shall  have  been 
Enforoement.  committed;  and  it  shall  be  the  duty  of  such  district 
attorney  to  bring  such  suits  upon  duly  verified  informa- 
tion being  lodged  with  him  of  such  violation  having  oc- 
curred; and  it  shall  also  be  the  duty  of  the  Interstate 
<^°iissionC!onmfierce  Commission  to  lodge  with  the  proper  district 

*^-  attorneys  information  of  any  such  violations  as  may 

come  to  its  knowledge. 

to^m^ffl.^  Sec.  4.  That  it  shall  be  the  duty  of  the  Interstate  Com- 
merce Commission  to  enforce  the  provisions  of  this  Act, 
and  all  powers  heretofore  granted  to  said  Commission  are 
hereby  extended  to  it  for  the  purpose  of  the  enforcement 
of  this  Act. 
254 


ACT  OF  1908.  255 


Sec.  5.  That  the  term  "common  carrier"  as  used  incj^^^^®^    ^' 
this  Act  shall  include  the  receiver  or  receivers  or  other 
persons  or  corporations  charged  with  the  duty  of  the 
management  and  operation  of  the  business  of  a  common 
carrier. 

Sec.  6.  That  nothing  in  this  Act  contained  shall  apply  ig^^^s£.^y. 
to  any  locomotive  upon  which,  by  reason  of  the  use  of 
oil,  electricity,  or  other  such  agency,  an  ash  pan  is  not 
necessary. 


INDEX. 

Page. 

*'A"and  "B"  ENDS  OF  CARS,  defined 69 

ABSOLUTE  duty  of  carriers: 

under  Safety  Appliance  Acts — 10 

not  to  be  evaded  by  assignment 16 

under  Hours  of  Service  Act Ill 

ACCIDENT,  Unavoidable,  defined 160 

See  Actions  for  Personal  Injury;  Provisos 
ACTIONS 

in  nature  of  actions  in  debt  appropriate  for  recovery  of  penalties  under 

Safety  Appliance  Acts 20 

Proceedings  for  recovery  of  penalties,  civil: 

under  Safety  Appliance  Acts 19 

under  Hours  of  Service  Act 116 

for  penalties  not  rendered  criminal  by  payment  of  proceeds  to  Govern- 
ment         20 

ACTIONS  FOR  PERSONAL  INJURY 

Construction  of  Safety  Appliance  and  Hours  of  Service  Acts  in 220 

Violations  of  Safety  Appliance  Acts  in,  likewise  violations  in  actions  for 

recovery  of  penalties 12, 24 

ACT  OF  GOD 

defined 162 

not  an  excuse  from  statutory  liability  if  resulting  injury  preventable  by 

foresight,  pains  and  care 163 

waives  application  of  Hours  of  Service  Act  to  operators 160 

occurring  after  departure  of  crew  from  terminal  suspends  operation  of 

Hours  of  Service  Act  for  given  trip 165 

ACTS 

Digest  of  decisions  under 

Safety  Appliance 1 

Hours  of  Service 102 

See  Act  to  regulate  commerce;  Customs  and  Revenue  Laws;  Em- 
ployers' Liability  Acts;  Pure  Food  and  Drugs  Acts;  Twenty- 
Eight  Hour  Law. 
ACT  TO  REGULATE  COMMERCE 

not  in  pari  materia  with  Safety  Appliance  Acts 22 

Requirement  of  reports  authorized  by  section  20  of 173 

ACTUALLY  USED 

Couplers,  must  be  operative  of  their  own  mechanism 71 

Defective  couplers  need  not  be,  to  constitute  a  violation  of  Safety  Appli- 
ance x\cts 71 

ADJACENT  CARS,   Employees  not  required  to  go  around,  over  or  under 

cars  to  operate  couplers  by  means  of  levers  on  opposite  sides  of 72 

ADMINISTRATIVE  RULINGS  OF  THE  COMMISSION: 

under  the  Hours  of  Service  Act 260 

under  the  Safety  Appliance  Act 245 

50611—15 17  257 


258  INDEX. 


Page. 

AGENCIES,  Regulation  of  interstate  commerce  comprehends  regulation  of  its.      190 

AGENCY:  Decision  of  conductor  as  to  disposition  of  defective  car,  in  legal 

effect,  decision  of  carrier  by  which  employed 16 

AGENTS:  See  Officers  and  Agents. 

AGREEMENT:  See  Trackage  Agreement. 

AIR  BRAKES:  See  Power  Brakes. 

AIR  HOSE,  Coupling  of,  no  part  of  coupling  operation 74 

AMBIGUITY,  Hours  of  Service  Act  not  unconstitutional  by  reason  of 110 

AMENDMENT  of  pleadings  to  bring  within  Safety  Appliance  Acts  a  case  not 
otherwise  within  their  terms,  averment  of  statutory  cause  of  action  in 
which  liability  of  defendant  is  greater  than  at  common  law 217 

AMENDMENT  OF  1903  designed  to  extend  original  Safety  Appliance  Act. . .  8 

affirmative  and  declaratory  of  original  Act 27 

AMENDMENT  OF  1910,  Proviso  in 

declaratory  of  judicial  interpretation  of  Safety  Appliance  Acts  as  pre- 
viously amended 9T 

has  no  retrospective  application  to  prior  violations 101 

AMERICAN     RAILWAY     ASSOCIATION,  Delegation  to,  of  authority  to 

designate  height  of  drawbars,  constitutional 10 

AMOUNTS  of  penalties  under  Hours  of  Service  Act  determinable  by  courts. . .      119 

"ANY  CAR  "  comprehends  all  cars  running  on  rails 46 

APPLIANCES,  Common  law  duty  of  carriers  to  provide  reasonably  safe 232 

See  Safety  Appliances. 

AROUND,  OVER  OR  UNDER  cars,  Employees  not  required  to  go,  to  operate 

couplers  by  means  of  levers  on  opposite  sides  of  adjacent  cars 72 

ARRANGEMENT:  See  Common  Control,  Management  or  Arrangement. 

ASSIGNMENT,  Duty  of  carriers  under  Acts  not  to  be  evaded  by 16 

"ASSOCIATED,  "  as  used  in  Act  of  1903,  defined 65 

ASSOCIATION  with  cars  commercially  used.  Act  of  1910  prohibits  hauling 

of  defective  cars  in  revenue  trains  or  in 100 

ASSUMPTION  OF  RISK: 

abrogated  by  Safety  Appliance  Acts 221 

defined  and  distinguished  from  contributory  negligence 223 

not  to  be  charged  under  name  of  contributory  negligence 223 

presupposes  knowledge  of  manner  in  which  work  is  done 224 

Working  on  defective  cars,  not 224 

Continuance  in  service  with  knowledge  of  defects,  not 225 

Abrogation  of,  one  penalty  for  violation  of  Safety  Appliance  Acts 24 

AUTOMATIC  BY  IMPACT,  Operation  of  couplers  must  be 75 

AUTOMATIC  COUPLERS: 

not  required  between  engines  and  tenders 70 

Operation  of,  a  proper  subject  for  expert  testimony 209 

See  Couplers. 

"BAD   ORDER  CARD,  "  defined 26 

"B"  ENDS  OF  CARS,  defined 69 

BENEFICIENT,  Safety  Appliance  Acts  are 7 

BRAKES:  See  Hand  Brakes;  Power  Brakes. 

BROKEN  DRAWBARS  not  an  excuse  for  excess  service 170 

BROKEN   RAILS 

not  an  excuse  for  excess  service 169 

Fatigue  as  truly  a  physical  cause  of  accidents  as 119 


INDEX.  259 


BURDEN  OF  PROOF 

on  Government  in  actions  nnder  Acts 201 

of  negligence,  on  plaintiff  in  actions  for  personal  injury 22ft 

of  contributory  negligence,  on  defendants  in  such  actions 22^ 

CABOOSE  CARS,  Safety  Appliance  Acts  apply  to 47 

CANAL  ZONE,  Provisions  of  Safety  Appliance  Acts  extend  to  Panama 64 

CARDS:  See  ''Bad  Order  Card;"  "M.  C.  B.  Defect  Card." 
CARRIERS 

Duty  of,  under  Safety  Appliance  Acts: 

absolute 10 

not  to  be  evaded  by  assignment 16 

Diligence  on  the  part  of 

not  a  defense  to  actions  under  Safety  Appliance  Acts 13 

will  obviate  occasion  for  such  prosecutions 14 

Decision  of  conductors,  as  to  disposition  of  defective  cars,  in  legal  effect, 

decision  of 16 

Inconvenience  of,  not  an  element  of  violations 16 

Willful  intention  of,  not  an  element  of  violations 16 

Prior  knowledge  of,  not  an  element  of  violations 14 

liable  for: 

hauling  defective  foreign  cars 26 

defectd  due  to  deliberate  acts  of  employees 17 

failure  of  employees  to  connect  uncoupling  chains 80 

hauling  of  defective  cars  over  lines  of  other  carriers 34 

need  not  accept  defective  cars  from  connecting  lines 27 

required  to  provide  necessary  repair  points 63 

in  order  to  justify  movement  of  defective  carb: 

must  establish  necessity  of  movement  for  repair 98 

must  show  that  defects  involved  could  not  have  been  repaired  at 

point  of  discovery 100 

Intrastate,  participating  in  interstate  commerce,  subject  to  Safety  Appli- 
ance Acts 31 

Common  control  of  facilities  not  prerequisite  to  application  of  Safety  Ap- 
pliance Acts  to  intrastate 33 

Inspectors  of  Commission  need  not  advise,  of  defects 203 

subject  to  Hours  of  Service  Act 120 

Absolute  liability  of Ill 

chargeable  with  knowledge  of  acts  of  officers  and  agents 115 

required  to  provide  resting  places  for  employees 163 

not  excused  from  filing  reports  by  failure  of  Commission  to  include 

with  Order  of  June  28,  1911,  forms  therein  described 176 

Inability  of,  to  compel  employees  to  rest  during  intermissions  from 

duty,  a  remote  contingency 120 

See  Common  Carriers;  Electric  Railways;  Railroads. 
CARRIERS'   REPORTS:  See  Hours  op  Service  Reports. 
CARS 

running  on  rails,  "Any  car"  comprehends  all 46 

Safety  Appliance  Acts  apply  to  all: 

containing  interstate  traffic '. 35 

hauled  or  used  in  interstate  trains 36 

hauled  or  used  in  connection  with  interstate  cars *. 39 

movement  of  which  is  necessarj^  to  movement  of  interstate  cars 40 

hauled  or  used  on  highway  of  interstate  commerce 41 


260  INDEX. 


CARS — Continued.  Page. 

regularly  used  in  interstate  commerce 42 

empty 44 

Cars  hauled  in  connection  with  interstate  cars  need  not  be  contiguous  to 

such : 40 

Hauling  of,  commerce 45 

to  which  Safety  Appliance  Acts  apply,  subject  to  their  terms  while  moved 

within  a  single  State 48 

hauled  under  trackage  agreement,  hauled  on  line  of  operating  company. .        34 

moved  for  lading,  used  in  interstate  commerce 182 

Subsequent  movement  of,  to  interstate  destination,  evidence  of  intended 

destination  at  time  of  movement  for  lading 188 

Weighing  of,  to  determine  weights  of  interstate  contents,  interstate  com- 
merce        183 

Handholds  required  in  ends  and  sides  of 84 

Purpose  of  handholds  to  secure  safety  of  men  in  coupling 83 

may  be,  but  are  not  required  to  be,  equipped  with  double  levers 81 

Couplers  required  to  be  operated  on  both  ends  of . . . '. 69 

with  power  brakes  cut  out,  not  power-braked 66 

Engine  and  tender  counted  as  two,  in  computing  percentage  of  power 

brakes  in  any  train •     66 

Employees  entering  between,  not  chargeable  with  contributory  negligence.      229 
See  Caboose  Cars;  Defective  Cars;  Dining  Cars;  Locomotives;  Pas- 
senger Cars;  Tenders. 

CASUALTY,  defined 16« 

See  Provisos. 
CAUSAL  CONNECTION  must  be  established  between  violation  of  statute  and 
resulting  injury,  to  bring  a  case  within  purview  of  Safety  Appliance  Acts 

or  Hours  of  Service  Act 231 

CAUSES  OF  DELAY 

ordinarily  to  be  expected  in  operation  of  trains  not  an  excuse  for  excess 

service 168 

See  Broken  Rails;  Cleaning  Fires;  Congestion  of  Traffic;  Delay  in 
Starting  Trains;  Economical  Reasons;  Engine  Failures;  Frost 
ON  Rails;  Heat;  Hot  Boxes;  Injectors  Failing;  Intermissions; 
Meeting  or  Passing  Trains;  Poor  Coal;  Pulled  out  Drawbars; 
Running  for  or  Taking  Water;  Sudden  Illness;  Unnecessary 
Hauling  of  Chain ed-up  Cars;  Waiting  for  Helper  Engine; 
Waiting  for  Orders;  Wrecks. 
CHAINED  UP  CARS 

Act  of  1910  does  not  permit  hauling  of,  in  revenue  trains  or  in  association 

with  cars  commercially  used 106 

Unnecessary  hauling  of,  not  an  excuse  for  excess  service 170 

CHAINS 

Carriers  liable  for  failure  of  employees  to  connect : 80 

connecting   with   handrails,    Safety   Appliance   Acts    prohibit   couplers 

operative  only  by  means  of 74 

CHARACTER:  See  Interstate  Character. 
CIVIL  ACTIONS,  proceedings  under: 

Safety  Appliance  Acts 19 

Hours  of  Service  Act 116 

CLEANING  FIRES  not  an  excuse  for  excess  service 169 

CLEVIS  PIN,  removed,  Safety  Appliance  Acts  prohibit  use  of  a  coupler  with. .        76 
See  Pin. 


INDEX.  261 


Page. 

COAL,  Use  of  poor,  not  an  excuse  for  excess  service 170 

COLLISIONS:  See  Wrecks. 

COMBINING  OF  DEFECTS.  Delay  in  making  repairs  not  justified  by 97 

COMMA:  See  Punctuation. 

COMMERCE,  Hauling  of  car  itself  is 45 

See  Interstate  Commerce. 

COMMERCIALLY  USED 

by  interstate  carriers,  Safety  Appliance  Acts  apply  to  cars 45 

Cars  used  for  transportation  of  company  property,  are : . .        45 

Act  of  1910  prohibits  hauling  of  chained  up  cars  in  revenue  trains  or  in 

association  with  cars 100 

COMMINGLING 

of  interstate  and  intrastate  commerce,  dangers  affecting 185 

of  employee's  duties,  Application  of  Hours  of  Service  Act  not  to  be  evaded 

by , 128 

COMMISSION.    /Sffi  Interstate  Commerce  Commission. 

COMMON  CARRIERS: 

defined 29 

Railroads  devoted  to  public  use  are 29 

Receivers  of  railroad  companies,  as  such,  are 121 

See  Railroads. 

COMMON  CONTROL,  MANAGEMENT  OR  ARRANGEMENT  not  prerequi- 
site to  application  of  Safety  Appliance  Acts  to  intrastate  carriers- 33 

COMMON  LAW,  Statutes  modifying,  to  be  strictly  construed 197 

COMPANY  PROPERTY,  Hauling  of,  by  interstate  carrier,  interstate  com- 
merce         184 

CONDUCTOR,  Decision  of,  as  to  disposition  of  defective  car,  in  legal  effect 

decision  of  carrier  by  which  employed 16 

CONFLICT  OF  LAWS:  Invalidity  of  state  statutes  seeking  to  regulate  inter- 
state commerce 187 

CONGESTION  OF  TRAFFKJ  not  an  excuse  for  excess  service- 169 

CONGRESS 

in  regulating  interstate  commerce,  may  incidentally  regulate  intrastate 

traffic .* 190 

in  drafting  Safety  Appliance  Acts,  took  cognizance  of  difficulties  incident 

to  interchange  of  couplers 82 

Intention  of,  controls  interpretation  of  federal  statutes 192 

•ONNECTION 

with  interstate  cars,  Safety  Appliance  Acts  apply  to  all  cars  hauled  or  used 

in 39 

Cars  hauled  or  used  in,  need  not  be  contiguous  to  such  cars 40 

Causal,  must  be  established  between  violation  of  statute  and  injury  sus- 
tained, to  bring  action  within  purview  of  Acts 231 

"CONSECUTIVE  "  as  used  in  Hours  of  Service  Act,  not  restricted  to  unbroken 

intervals  of  time -. 137 

CONSTITUTIONAL: 

Safety  Appliance  Acts  are 9 

Hours  of  Service  Act  is 108 

Classification  of  operators  in  Hours  of  Service  Act  is 109 

Orders  of  Commission  requiring  reports  are Ill 


262  INDEX. 


CONSTRUCTION  AND  INTERPRETATION  Page. 

of  Safety  Appliance  Acts 9 

of  Hours  of  Service  Act 108 

CONSTRUCTION  OF  STATUTES,  General  nilee  governing,  as  applied  in 

caaes  under  Acts 192 

CONTEMPORANEOUS  INTERPRETATION  of  those  entrusted  with  exe- 
cution of  citatutes,  entitled  to  respectful  consideration  of  courts 198 

CONTENTS,  Weighing  of  interstate,  interatate  commerce 183 

CONTIGUOUS  to  interstate  cars.  Cars  used  in  connection  with,  need  not  be. .  40 
CONTINUITY  OF  SERVICE  unbroken  by  intermissions  from  duty; 

if  indeterminate 140 

if  too  brief  to  permit  of  rest 138 

unless  given  in  good  faith  and  under  circumstances  that  permit  of  rest .  142 
CONTINUOUS 

as  used  in  Hours  of  Service  Act,  not  restricted  to  unbroken  periods  of  time. .  13T 
If  an  operator  remains  on  duty  for  more  than  9  or  13  hours  in  a  24-hour 

period,  it  is  immaterial  that  such  service  may  not  be 162 

CONTINUOUSLY  OPERATED 

as  used  in  Hours  of  Service  Act,  defined 14T 

Trifling  interruptions  do  not  break  continuity  of  operation  of  oflfices  other- 
wise   149 

CONTRACT:  See  Specific  Performance;  Trackage  Agreement. 
CONTRIBUTORY  NEGLIGENCE 

distinguished  from  assumption  of  risk 223 

Assumption  of  risk  not  to  be  charged  under  name  of 223 

Defense  of,  unimpaired  by  Safety  Appliance  Acts 228 

Burden  of  proving,  on  defendant,  in  actions  for  personal  injury 229 

Question  of,  for  jury 230 

Knowledge  and  experience  to  be  considered  by  jury  in  determining  what  is .  230 

Employees  entering  between  cars,  not  chargeable  with 229 

CONTROL 

of  interstate  commerce.  Federal 186 

All  commerce  subject  to  federal  or  to  state 186 

CONVENIENCE  not  an  element  of  observance  of  Safety  Appliance  Acts 15 

COUPLERS 

General  requirements  of  Safety  Appliance  Acts,  with  respect  to 68 

between  engines  and  tenders  need  not  be  automatic 70 

required  to  be  operative     ^ 

on  both  ends  of  cars 69 

of  their  own  mechanism 71 

in  an  ordinary  and  reasonable  manner 70 

must  be  susceptible  of  being  coupled  as  well  as  uncoupled  without  neces- 
sity of  men  going  between  ends  of  cars 68 

if  defective,  need  aot  be  actually  used,  to  constitute  violation  of  Safety 

Appliance  Acts 71 

Safety  Appliance  Acts  prohibit  use  of,  which  will  not  couple  automat- 
ically by  impact 76 

by  reason  of  being  worn  out •. 76 

by  reason  of  clevis  pin  removed 75 

by  reason  of  chain  kinked  in  coupler  head 76 

by  reason  of  curvature  of  track 77 

by  reason  of  projecting  load , 78 


INDEX.  263 


COUPLERS— Continued.  Page, 
operative  only  by  means  of  chains  connecting  with  handrails,  not  in  com- 
pliance with  Safety  Appliance  Acts 74 

Defective,  may  not  be  used,  even  though  defects  so  obvious  that  no  reason- 
ably prudent  employee  would  attempt  to  use 79 

Operation  of  automatic,  a  proper  subject  for  expert  testimony 209 

Exhibition  of  models  to  illustrate  defects  in,  permissible 210 

Temporary  substitution  of  "stub  pilot"  to  install  automatic,  not  action- 
able negligence 228 

Preparation  of,  for  impact,  part  of  coupling  operation 74 

Congress,  in  drafting  Safety  Appliance  Acts,  took  cognizance  of  difficulties 

incident  to  interchange  of 82 

Use  of  car  on  which  a  coupler  is  inoperative,  same  in  legal  effect  as  if  such 

car  had  never  been  equipped  with  automatic 80 

COUPLING 

of  air  hose  no  part  of  coupling  operation 74 

Provisions  of  Acts  that  couplers  shall  be  operative  without  necessity  of 
men  going  between  ends  of  cars,  applicable  to,  as  well  as  to  uncoupling 

operations 68 

COUPLING  OPERATION 

Preparation  of  couplers  for  impact,  part  of 74 

Coupling  of  air  hose  between  cars,  no  part  of 74 

COURTS 

may  take  judicial  notice  of 

Safety  Appliance  and  Hours  of  Service  Acts 219 

Orders  of  the  Interstate  Commerce  Comjnission  made  in  pursuance 

thereof 219 

fact  that  trunk-line  railroads  are  generally  engaged  in  interstate  com- 
merce          30 

have  no  authority  to  impose  for  carriers'  failure  to  report  a  smaller  penalty 

than  that  provided  by  section  20  of  Act  to  regulate  commerce 176 

should  not  concern  themselves  with  harshness  of  legislation 196 

must  enforce  law  as  they  find  it 195 

in  construing  statutes  may  consult  their  history 196 

should  give  respectful  consideration  to  contemporaneous  interpretation  of 

statutes  by  those  entrusted  with  their  execution 198 

Penalties  under  Hours  of  Service  Act,  determinable  by 119 

Refusal  of,  in  proper  cases,  to  direct  a  verdict,  reversible  error 216 

CREW:  See  Employees. 

CURVATURE  IN  TRACK,  Safety  Appliance  Acts  prohibit  use  of  couplers" 

inoperative  by  reason  of 77 

CUSTOMS  AND  REVENUE  LAWS,  Safety  Appliance  Acts  to  be  construed 

similarly  to 21 

CUT  OUT  CARS:  See  Power  Brakes. 

DANGER  to  intrastate  commerce  jeopardizes  interstate  commerce 185 

DAYTIME,  Offices  operated  only  during,  defined 147 

DEADHEADING  Employees,  exempted  from  application  of  Hours  of  Service  Act      126 
DEBT,  Penalties  under  Safety  Appliance  Acts  recoverable  in  actions  in  nature 

of  actions  in 20 

DECLARATIONS 

in  cases  under  Acts  need  not  negative  provisos 211 

Allegations  in,  that  cars  are  ''not  equipped  with  couplers  coupling  auto- 
matically by  impact, ' '  a  statement  of  result,  not  an  affirmative  charge . .      214 

See  Pleading,  Practice  and  Procedure. 


264  INDEX. 


Page. 
DEFECTIVE,  Repeated  unsuccessful  efforts  to  operate  couplers,  evidence  that 

they  are .' 71 

DEFECTIVE  CARS 

may  be  hauled  on  flat  cars  properly  equipped 28 

may  not  be  hauled  by  means  of  chains  in  revenue  trains 100 

permitted  to  be  hauled  to  nearest  available  repair  point 92 

not  permitted  to  be  hauled  away  from  a  repair  point 95 

Carriers  need  not  accept ■ 27 

Decision  of  conductor  as  to  disposition  of,  decision  of  carrier  by  which  em- 
ployed         16 

Distance  hauled  in  violation  of  Safety  Appliance  Acts,  immaterial 62 

Necessity  of  movement  of,  for  purpose  of  repair,  must  be  established  under 

proviso  in  Act  of  1910 98 

0^vnership  of,  immaterial  in  actions  under  Safety  Appliance  Acts 26 

Working  on,  not  assumption  of  risk 224 

Unnecessary  hauling  of,  by  means  of  chains  instead  of  drawbars,  not  an 

excuse  for  excess  service 170 

DEFECTS 

Diligence  in  repair  of 

not  a  defense  in  actions  under  Safety  Appliance  Acts 13 

will  obviate  occasion  for  such  prosecutions 14 

may  not  not  be  combined  so  as  to  jastify  delay  in  making  repairs 97 

must  be  repaired,  if  possible,  at  point  of  discovery 100 

Carrier's  knowledge  of,  not  an  element  of  violations  of  Safety  Appliance 

Acts. • 14 

Carriers  liable  for,  resulting  from  deliberate  acts  of  employees 17 

Engine  failures,  due  to  mechanical,  not  an  excuse  for  excess  service 169 

Exhibition  of  model  couplers  for  illustration  of,  permissible 210 

Employee's  continuance  in  service  of  carrier  with  knowledge  of,  not  as- 
sumption of  risk 225 

See  Defective  Cars. 
DEFENDANTS 

must  bring  themselves  strictly  within  terms  of  proviso 212 

Judgment  may  be  rendered  against  either  or  both  of  two  joint 217 

DEFENSE 

to  actions  under  Safety  Appliance  Acts: 

Diligence  not  a IS 

Lack  of  knowledge  of  defects,  not  a 14 

Lack  of  intention  to  violate  statute,  not  a ^        15 

Inconvenience,  not  a 15 

Custom  of  carriers  in  observance  of  practice ^  condemned  by  statute, 

not  a 27 

to  actions  under  Hours  of  Service  Act: 

Lack  of  knowledge  of  violations  or  previous  instructions  to  contrary, 

not  a 113 

Occurrence  of   conditions  ordinarily  to  be  expected  in  operation  of 

trains,  not  a 168 

Economical  reasons  alone,  never  a 172 

See  Exceptions. 
DELAY  IN   STARTING  TRAINS  not  an  excuse  for  excess  sendee 169 


INDEX.  265 

Page. 

DELEGATION    OF    AUTHORITY  to  designate  height  of  drawbars,  consti- 
tutional         10 

DERAILMENTS:  See  Wrecks. 

DILIGENCE 

not  a  defense  to  actions  under  Safety  Appliance  Acts .• 1^ 

will  obviate  occasion  for  such  prosecutions 14 

DINING  CARS,  Safety  Appliance  Acts  apply  to 4& 

DINNER:  See  Meals. 

DIRECTED  VERDICT 

permissible  only  when  all  reasonable  men  would  deduce  same  conclusion 

from  facts  which  condition  issue 215 

Government   entitled    to,   if  case  established    by  uncontradicted    evi- 
dence         214 

Refusal  of  trial  judge,  in  proper  case  to  order,  reversible  error 215 

DISCRETION  of  employee  in  continuing  on  duty  in  excess  of  permitted 

periods  can  not  supersede  mandate  of  law 114 

DISTANCE  defective  cars  hauled  in  violation  of  Safety  AppUance  Acts,  im- 
material  62 

DISTRICT  OF  COLUMBIA 

Provisions  of  Safety  Appliance  Acta  extend  to 28 

Jurisdiction  of  actions  under  Acts,  vested  in  Supreme  Court  of 218 

DIVERTING  ORDER  changes  destination  of  shipment 1 84 

DIVISION  POINT 

defined 164 

Suit  for  specific  performance  of  contract  to  maintain,  where  continuance 

would  preclude  observance  of  Hours  of  Service  Act,  unsustainable 217 

DOUBLE  LEVERS 

permitted  but  not  required  by  Safety  Appliance  Acts 81 

if  applied,  must  be  operative 82 

DOUBLING  on  hill,  account  of  frost  on  rails,  not  an  excuse  for  excess  service . .      169 

DRAWBARS 

General  requirements  with  respect  to 86 

may  not  be  used  on  front  ends  of   locomotives  if  lower  than  standard 

height 87 

Causes  of  depression  of,  below  standard  height,  immaterial 89 

pulled  out,  not  an  excuse  for  excess  service 170 

Unnecessary  hauling  of  defective  cars  by  means  of  chains  instead  of,  not 

an  excuse  for  excess  service 170 

See  Couplers. 

DUTIES 

of  engine  watchmen,  defined 137 

of  employees,  Application  of  Hours  of  Service  Act  not  to  be  evaded  by 

commingling  of 128 

DUTY  OF  CARRIERS 

under  Safety  Appliance  Acts,  absolute 10 

under  Hours  of  Service  Act,  absolute Ill 

not  to  be  evaded  by  assignment 16^ 

to  provide  appropriate  places  along  their  lines: 

where  statutory  defects  may  be  repaired 63 

where  employees  may  rest 163 

ECONOMICAL  REASONS  alone,  never  an  excuse  for  excess  service 172 

ECONOMIC  LOSS  resulting  from  accidents,  Acts  designed  to  distribute 8 


266  INDEX. 

Page. 

"  EFFICIENT,"  aa  descriptive  of  handbrakes,  defined 90 

ELECTRICAL  CURRENT,  Proviso  in  section  2  of  Hours  of  Service  Act, 

applicable  to  all  employees  handling  train  orders  by  means  of 153 

ELECTRIC  RAILWAYS  engaged  in  interstate  commerce,  subject  to: 

Safety  Appliance  Acts 33 

Hours  of  Service  Act 121 

EMERGENCY 

as  used  in  Hours  of  Service  Act,  defined 159 

Employees  in  train  service  may  occasionally  use  telephone  in  cases  of 157 

Sudden  illness  may  constitute  an 172 

EMPLOYEES 

entering  between  cars,  not  chargeable  with  contributory  negligence 229 

on  work  trains  assembling  logs  for  interstate  shipment,  engaged  in  inter- 
state commerce 182 

subject  to  Hours  of  Service  Act 122 

in  train  service  may  occasionally  use  telephone 157 

may  not  prolong  service  by  duties  unconnected  with  movement  of  any 

train 130 

while  deadheading,   exempted    from    application  of    Hours  of  Service 

Act 126 

Separate  penalties  recoverable  for  each  and  all  who  remain  on  duty  in 

excess  of  permitted  periods 118 

Safety  Appliance  Acts  designed  to  promote  safety  of 7 

Hours  of  Service  Act  designed  to  promote  safety  of 106 

Carriers  liable  for  defects  chai^eable  to  deliberate  acts  of 17 

Carriers  liable  for  failure  of,  to  connect  chains 80 

No  violation  of  Safety  Appliance  Acts  results  from  failure  of,  to  operate 

equipment 17 

One  penalty  for  \'iolation  of  Safety  Appliance  Acts  accrues  to,  in  abro- 
gation of  assumption  of  risk 24 

Safety  Appliance  Acts  prohibit  use  of  cars  on  which  appliances  are  so 
obviously  defective  as  not  to  be  attempted  to  be  used  by  reasonably 

prudent 79 

Purpose  of  handholds  to  secure  safety  of 83 

Discretion  of,  in  continuing  on  duty  in  excess  of  permitted  periods  does 

not  supersede  mandate  of  law 114 

Inability  of  carriers  to  compel  rest  of,  a  remote  contingency 120 

Preparatory  or  supplemental  service  of,  to  be  computed  as  time  on  duty  ..      126 
Application  of  Hours  of  Service  Act  to,  not  to  be  evaded  by  commingling 

of  duties 128 

Duty  of  carriers  to  provide  suitable  places  along  their  lines  for  rest  and 

recuperation  of 163 

Excess  service  of,  not  excused  by  occurrence  of  conditions  ordinarily  to 

be  expected  in  operation  of  trains 168 

"Other",  as  used  in  Hours  of  Service  Act,  defined 123 

See  Ferry  Employees;  Train  Baggagemen. 
EMPLOYERS'  LIABILITY  ACTS  distinguished 

from  Safety  Appliance  Acts 28 

from  Hours  of  Service  Act 116 

EMPTY  CARS,  Safety  Appliance  Acts  apply  to 44 


INDEX.  267 

ENACTING   CLAUSE  Page. 

Purpose  of  statute  exhibited  in  title  and 193 

Purpose  of  proviso  to  restrain  or  modify 211 

ENDS  AND   SIDES   OF  CARS,  Handholds  required  in 84 

ENDS  OF  CARS 

defined 61 

Automatic  couplers  required  on  both 61 

ENGINE,  Waiting  for  helper,  not  an  excuse  for  excess  service 171 

ENGINE   FAILURES,  not .  n  excuse  for  excess  service 16» 

ENGINES  AND  TENDERS 

counted  as  two  cars  in  computing  percentage  of  air 66 

Automatic  couplers  not  required  between 70 

ENGINE  WATCHMEN 

Duties  of,  defined 13T 

.     Firemen  as,  on  duty  within  purview  of  Hours  of  Service  Act 131 

Immaterial  whether  service  as,  precedes,  intervenes,  or  succeeds  regul^ 

serAdce 136 

EQUIPMENT 

prescribed  by  Safety  Appliance  Acts  must  be  maintained  in  appropriate 

repair 10 

No  violation  of  Safety  Appliance  Acts  results  from  failure  of  employees  to 

operate 1 IT 

EVIDENCE,  General  rules  of 201 

EXCEPTIONS  to  the  application  of  the 

Safety  Appliance  Acts 90 

Hours  of  Service  Act 159 

EXCESSIVE  HEAT,  Held  to  be  an  excuse  for  excess  service 171 

EXCESS  SERVICE,  See  Hours  of  Service  Act. 

EXCUSES:  See  Defense. 

EXECUTION  OF  STATUTES,  interpretation  of  those  intrusted  with,  entitled 

to  respectful  consideration  of  courts 198 

EXPERT  TESTIMONY 

Operation  of  automatic  couplers  a  proper  subject  for .• 20D 

Competency  of  openings  in  buffers  on  ends  of  cars  as  substitutes  for  hand- 
holds, not  a  proper  subject  for 20© 

EXPRESS  MATTER,  Transportation  of,  for  independent  express  company 

to  interstate  destination,  interstate  commerce 18$ 

FACILITIES  FOR  REPAIR,  Carriers  required  to  provide 63 

FAILURES  OF  ENGINES:  6'ee  Engine  Failures. 

FATIGUE  as  truly  a  physical  cause  of  accidents  as  open  switches  and  broken 

rails 119 

FEDERAL  CONTROL  of  interstate  commerce,  generally 186 

FERRY  EMPLOYEES  exempted  from  application  of  Hours  of  Service  Act. .  122 
FIFTH  AMENDMENT  not  infringed  by  Order  requiring  Hours  of  Service 

Reports Ill 

FIREMEN  WATCHING  ENGINES:  See  Engine  Watchmen. 

FIRES,  Cleaning  of,  not  an  excuse  for  excess  service 169 

FLAT  CARS,  Defectivecars  may  be  hauled  on 28 

FLUES  LEAKING  not  an  excuse  for  excess  service 169 

FOOD  AND  DRUGS  ACTS,  Safety  Appliance  Acts  analogous  to 21 

FOREIGN  CARS,  Carriers  liable  for  hauling  of  defective 26 

FORMS,  Failure  to  include,  with  Order  of  June  28,  1911,  no  defense  to  carrier's 

failure  to  file  reports 176 


288  INDEX. 

Page. 
FOURTH  AMENDMENT  not  infringed  by  Order  requiring  Hours  of  Service 

Reports Ill 

FREIGHT  CARS,  Locomotives  at  heads  of  freight  trains 46 

FROST  ON  RAILS,  not  an  excuse  for  excess  serAdce 169 

GENERALLY  ENGAGED  in  interstate  commerce 

Safety  Appliance  Acts  apply  to  railroads 30 

Courts  may  take  judicial  notice  that  trunk  line  railroads  are 30 

GOVERNMENT 

entitled  to  directed  verdict,  if  case  established  by  uncontradicted  evidence .  214 

need  not  negative  provisos  in  statutes 211 

Burden  of  proof  on,  in  cases  under  Acts 201 

Inspectors  of,  need  not  advise  carriers  of  defects 203 

See  United  States. 

GRAB  IRONS:  See  Handholds. 

HAND*  BRAKES 

Requirements  of  Safety  Appliance  Acts  witJi  respect  to 89 

Use  of,  to  insure  safety  of  trains,  not  a  violation  of  Safety  Appliance  Acts. .  66 

'  *  Efficient, ' '  as  used  in  section  of  Acts  requiring,  defined 90 

HANDHOLDS 

Requirements  of  Safety  Appliance  Acts  with  respect  to 83 

Purpose  of,  to  secure  safety  of  men  in  coupling  cars 83 

required  in  ends  and  aides  of  cars 84 

Any  reasonable  substitute  for,  compliance  with  Safety  Appliance  Acts 85 

Determination  of  what  are,  a  question  for  jury 208 

Necessity  of,  not  obviated  by  presence  of  other  devices  affording  some 

measure  of  safety 85 

Competency  of  openings  in  buffers  on  ends  of  cars,  as  substitutes  for,  not  a 

proper  subject  for  expert  testimony 209 

HANDRAILS,  Safety  Appliance  Acts  prohibit  use  of  couplers  operative  only 

by  means  of  chains  connecting  with 74 

HARSHNESS  of  particular  legislation,  no  concern  of  courts 195 

"HAUL,"  defined 37 

HAULED  OR  USED,  Cars  subject  to  Safety  Appliance  Acts  if: 

in  interstate  trains 36 

in  connection  with  interstate  cars 39 

on  any  highway  of  interstate  commerce 41 

in  territories  of  United  States 35 

by  one  carrier  over  tracks  of  another,  under  trackage  agreement 34 

HAULING 

of  car  itself,  commerce 45 

of  each  car  in  Adolation  of  Acts,  a  separate  offense 25 

See  Provisos. 

HEAT,  Held  an  excuse  for  excess  service 171 

HELPER  ENGINE,  Waiting  for,  not  an  excuse  for  excess  service 171 

HIGHWAY  of  interstate  commerce.  Safety  Appliance  Acts  apply  to  all  cars 

hauled  or  used  on 41 

HISTORY,  Courts  in  construing  statutes,  may  consult  their 196 

HOSE:  See  Am  Hose. 

HOT  BOXES  not  an  excuse  for  excess  service 169 

HOURS  OF  SERVICE  ACT 
Federal: 

Nature  and  Purpose - 106 

Construction  and  Interpretation 108 


INDEX.  269 

HOURS  OF  SERVICE  ACT— Continued.  Page. 
Federal— Continued. 

Scope 120 

Exceptions 15d 

Text 246 

to  be  construed  similarly  to  Safety  Appliance  Acts 116 

distinguishable  from  Twenty-Eight  Hour  Law  and  Employers'  Lia- 
bility Acts 116 

Violations  of,  Held  more  serious  than  of  Safety  Appliance  Acts  and 

Twenty-Eight  Hour  Law 117 

Government  need  not  negative  proAdsos  in 211 

of  a  State,  invalid  if  in  conflict  with  federal  Act 189 

HOURS  OF  SERVICE  REPORTS 

General  requirements  \vith  respect  to 173 

Commission's  Order  requiring,  not  unconstitutional Ill 

ILLNESS  may  be  an  emergency  within  purview  of  Hours  of  Service  Act 172 

IMPACT,  Operation  of  couplers  must  be  automatic  by 75 

INJECTORS  FAILING,  not  an  excuse  for  excess  service 169 

INJURY:  See  Actions  for  Personal  Injury 
IN  PARI  MATERIA 

Safety  Appliance  Acts  and  Employers  Liability  Acts 24 

Safety  Appliance  Acts  and  Act  to  regulate  commerce,  not 22 

INSPECTION  of  air  brake  equipment  required  at  terminals 67 

INSPECTORS 

of  Interstate  Commerce  Commission 

need  not  advise  carriers  of  defects 203 

not  to  be  discredited  on  account  of  employment 205 

Memoranda  of,  made  from  original  waybills,  may  be  read  to  jury 207 

of  carriers 

not  to  hi  discredited  on  account  of  employment 205 

Testimony  of,  with  respect  to  inspection  of  particular  cars  and  failure 

to  discover  particular  defects,  positive  testimony  of  negative  fact. .  207 
INSTRUCTIONS  to  employees  not  to  violate  Hours  of  Service  Act,  not  a 

defense 118 

INSTRUMENTALITIES  OF  INTERSTATE  COMMERCE 

Regulation  of  Interstate  commerce,  comprehends  power  to  regulate 190 

States  may  regulate,  under  police  power 189 

Rails  and  roadway  of  interstate  carriers  are 190 

INTENTION 

of  legislature  controls  construction  of  statutes 192 

Secret,  of  legislature  not  to  be  construed  into  statutes 193 

of  carriers  to  violate  Safety  Appliance  Acts,  not  an  element  of  their  vio- 
lation   15 

INTERCHANGEABILITY  OF  COUPLERS,  Difficulties  of,  before  Congress, 

in  drafting  of  Safety  Appliance  Acts 82 

INTEREST 

of  witnesses  no  reason  for  discrediting  their  testimony 205 

INTERMISSIONS 

for  meals,  not  an  excuse  for  excess  service 170 

if  indeterminate,  do  not  break  continuity  of  service 140 

if  too  brief  to  permit  of  rest,  do  not  break  continuity  of  service 138 

to  break  continuity  of  service,  must  be  given  in  good  faith 142 

Inability  of  carriers  to  compel  employees  to  rest  during,  a  remote  contin- 
gency   120 


270  INDEX. 

INTERPRETATION  Page. 

of  Safety  Appliance  Acts 9 

of  Hours  of  Service  Act 108 

Uncertainty  in,  removed  by  appropriate  punctuation 194 

See  Construction  op  Statutes. 

INTERRUPTIONS:  See  Intermissions. 

INTERSTATE  AND  INTRASTATE  COMMERCE  so  commingled  that  con- 
ditions injuriously  affecting  one,  jeopardize  the  other 185 

INTERSTATE  CARRIERS 

Safety  Appliance  Acts  apply  to  cars  commercially  used  by 46 

Hauling  by,  of  their  own  products,  interstate  commerce 45 

Rails  and  roadway  of,  instrumentalities  of  interstate  commerce 190 

INTERSTATE  CARS 

Safety  Appliance  Acts  apply  to: 

all 35 

all  cars  used  or  hauled  in  connection  with 39 

all  cars  movement  of  which  is  necessary  to  movement  of 40 

Cars  hauled  or  used  in  connection  with,  need  not  be  contiguous  to 40 

INTERSTATE  CHARACTER 

attaches  when  shipment  starts  to  move  as  article  of  interstate  commerce 

and  continues  until  ultimate  destination  is  reached 180 

Rebilling  of  interstate  shipments  does  not  affect 184 

INTERSTATE  COMMERCE ' 

Definitions  of 179 

Federal  control  of 186 

One  system  of  control  of,  alone  appropriate 187 

State  statutes  interfering  with,  invalid 187 

Congress  in  regulating,  may  regulate  intrastate  commerce 190 

Regulation  of,  comprehends  regulation  of  instrumentalities 190 

Rails  and  roadway  of  interstate  carriers  are  instrumentalities  of 190 

Obstruction  of,  unlawful 191 

Application  of  Hours  of  Service  Act  to  employees  not  to  be  evaded  by 

commingling  of  duties  with  respect  to  intrastate  and 128 

Safety  Appliance  Acts  apply  to  all  cars  regularly  used  in 42 

Acts  apply  to  all  cars  hauled  or  used  on  any  highway  of 41 

Acts  apply  to  electric  railways  participating  in  movement  of 33 

Acts  apply  to  intrastate  railways  participating  in  movement  of 31 

Territorial  commerce  equivalent  to,  in  subjection  to  Acts 35 

Acts  apply  to  railroads  generally  engaged  in 30 

Courts  may  take  judicial  notice  that  trunk  line-railroads  are  generally 

engaged  in 30 

INTERSTATE  COMMERCE  COMMISSION 

Inspectors  of,  need  not  advise  carriers  of  defects 203 

Delegation  of  authority  to,  to  designate  standard  height  of  drawbars,  not 

unconstitutional 10 

See  Orders  of  the  Interstate  Commerce  Commission. 

INTERSTATE  DESTINATION,  Movement  of  car  to,  evidence  of  intended 

destination  at  time  of  movement  for  loading 183 

INTERSTATE  HIGHWAY,  Safety  Appliance  Acts  apply  to  all  cars  hauled 

over  an 41 

INTERSTATE  TRAFFIC,  Safety  Appliance  Acts  apply  to  all  cars  containing. .  35 
See  Interstate  Commerce. 

INTERSTATE  TRAINS,  Safety  Appliance  Acts  apply  to  all  cars  hauled  or 

used  in 36 


INDEX.  271 

Page. 

INTERURBAN  RAILWAYS,  Safety  AppUance  Acte  apply  to 33 

INTERVALS  OF  TIME,  ''Consecutive"  and  "continuous,  "  as  used  in  Hours 

of  Service  Act,  not  restricted  to  unbroken 137 

See  Intermissions 

INTERYARD  MOVEMENTS,  Safety  Appliance  Acts  apply  to 49 

INTRASTATE  COMMERCE, 

Dangers  affecting  commingling  of  interstate  and 185 

Congress  in  regulating  interstate  commerce  may  incidentally  regulate 190 

INTRASTATE  RAILWAYS  participating  in  interstate  commerce  subject  to 

Safety  Appliance  Acts 31 

ISLAND  OF  PORTO  RICO,  Provisions  of  Safety  AppUance  Acte  extend  to. .  64 

JOINT  ACTIONS,  Judgment  may  be  rendered  against  either  or  both  defend- 

ante  in 217 

JUDICIAL  CONSTRUCTION 

out  of  place  where  statutes  are  unambiguous 194 

No  statute  should  be  frittered  away  by 197 

See  Construction  op  Statutes. 

JUDICIAL  NOTICE  may  be  taken 

of  Safety  Appliance  and  Hours  of  Service  Acts,  and  of 

Orders  of  Commission  in  furtherance  thereof 219 

of  fact  that  trunk-line  railroads  are  generally  engaged  in  interstate  com- 
merce         30 

JURISDICTION  of  actions  under  Safety  Appliance  and  Hours  of  Service 

Acts,  Supreme  Court  of  District  of  Columbia  has 218 

JURY 

Determination  of  what  is  a  handhold,  within  province  of 208 

Competency  of  substitutes  for  handholds,  a  question  for 209 

Exhibition  of  model  couplers  to,  permissible 210 

Necessity  of  movement  for  repair,  a  question  for 100 

Proximate  cause  of  an  injury,  a  question  for '.' 230 

Contributory  negligence,  a  question  for 230 

KINKED  CHAINS,  Safety  Appliance  Acts  prohibit  use  of  couplers  inopera- 
tive by  reason  of 76 

KNOWLEDGE 

not  an  element  of  violations  of 

Safety  Appliance  Acte 14 

Hours  of  Service  Act 113 

of  acte  of  officers  and  agente,  chargeable  to  carriers 115 

LADING,  Cars  moved  for,  used  in  interstate  commerce 182 

LAW:  See  Statutes. 

LEAKY  FLUES  not  an  excuse  for  excess  service 169 

LEGISLATURE 

Intention  of,  controls  construction  of  statutes 192 

Secret  intention  of,  not  to  be  construed  into  a  statute 193 

If  burden  of  statute  too  severe,  remedy  lies  with 196 

LENGTH  OF  HAUL  of  defective  cars,  immaterial 62 

LEVERMEN  IN  TOWERS,  Proviso  in  section  2  of  Hours  of  Service  Act, 

applies  to 153 

LEVERS 

Use  of  switch  engine  without,  not  a  violation  of  Safety  Appliance  Acte 
unless  it  is  shown  that  such  levers  are  necessary  to  automatic  operation 
of  couplers 82 


272  INDEX. 

LEVERS— Continued.  Pag,. 

Double,  permitted,  but  not  required  by  Safety  Appliance  Acta 81 

Double,  if  applied,  must  be  operative 82 

on  opposite  sides  of  trains.  Safety  Appliance  Acts  do  not  contemplate  that 
employees  shall  go  around,  over  or  under  cars  to  operate  couplers  by 
means  of 72 

LIABILITY  ACTS:  See  Employers'  Liability  Acts. 

LIABILITY  OF  CARRIERS 
absolute  under 

Safety  Appliance  Acts 10 

Hours  of  Service  Act Ill 

not  to  be  evaded  by  assignment 16 

not  to  be  excused  by  act  of  God  unless  resulting  injury  unpreventable  by 

foresight,  pains  and  care 168 

LIMITATION  OF  SERVICE 

of  trainmen 124 

of  operators  and  similar  employees 143 

LOADS:  See  Projecting  Loads. 

LOCAL  STATIONS,  Service  of  operators  at,  within  purpose  of  Hours  of  Service 

Act : 158 

LOCOMOTIVES 

subject  to  Safety  Appliance  Acts 46 

at  heads  of  freight  trains,  freight  cars 46 

LOCOMOTIVE  TENDERS:  See  Tenders. 

LOGS,  Employees  on  work  trains  assembling,  for  interstate  shipment,  engaged 

in  interstate  commerce 182 

LUMBER:  See  Projecting  Loads. 

MAINTENANCE  of  equipment  prescribed  by  Safety  Appliance  Acta 10 

MANAGEMENT:  See  Common  Control,  Management  or  Arrangement. 
MASTER  AND  SERVANT:  See  Actions  for  Personal  Injury. 

M.  C.  B.  DEFlStlT  CARD  defined 26 

MATERIAL 

Hauling  by  interstate  carrier  of  its  own,  interstate  commerce 45 

for  repairs  required  to  be  provided  by  carriers  subject  to  Safety  Appliance 

Acts , 6S 

MEALS,  Intermissions  for,  do  not  break  continuity  of  service 170 

MECHANICAL  DEFECTS,  Engine  Failures  due  to,  not  an  excuse  for  excess 

service 16d 

MECHANISM,  Couplers  must  be  operative  of  their  own 71 

MEETING  OR  PASSING  TRAINS,  not  an  excuse  for  excess  service 170 

MERITORIOUS,  Acts  are 7 

MEMORANDUM  made  by  government  inspector  from  original  waybills,  may 

be  read  to  jury 207 

MODEL  COUPLERS  admissible  in  evidence  for  illustration  of  particular 

defects 210 

MOVEMENTS 

of  cars  for  loading,  use  in  interstate  commerce 182 

of  any  car  subject  to  Safety  AppUance  Acts,  if  necessary  to  movement  of 

interstate  car 40 

Safety  AppUance  Acts  apply  to  switching 4d 

See  Provisos. 

NATURE  AND  PURPOSE 

of  Safety  Appliance  Acts 7 

of  Hours  of  Service  Act 106 


INDEX.  273 


Page. 

NAVIGABLE  WATERS,  Federal  power  over  interstate  commerce  as  com- 
plete on  land  as  on 187 

NEAREST  REPAIR  POINT 

defined 92 

Defective  cara  permitted  to  be  hauled  for  repair  to 92 

NECESSARY  ■ 

as  used  in  Act  of  1910,  defined 91 

movement  of  defective  cars  for  purpose  of  repair  permitted  by  proviso  in 

Act  of  1910 : 92 

NECESSITY  of  movement  for  repair 

ordinarily  a  question  for  jury 100 

must  be  established  by  carriers  seeking  to  bring  themselves  within  proviso 

in  Act  of  1910 98 

NEGATIVE  TESTIMONY  entitled  to  less  weight  than  positive  testimony. . .      206 

NEGLIGENCE 

Burden  of  pro%dng,  on  plaintiff,  in  actions  for  personal  injury 226 

Violation  of  statutory  duty 226 

Carriers  can  not  escape  liability  to  passengers  for  laying  off  trains  under 

Hours  of  Service  Act,  if  delays  result  from  their  own 120 

NOTICE:  See  Judicial  Notice. 

OBSTRUCTION  of  interstate  commerce  unlawful 191 

"OFF  DUTY,"  as  used  in  Hours  of  Service  Act,  defined 124 

See  On  Duty. 

OFFICES 

in  which  train  orders  are  handled,  Hours  of  Service  Act  appUes  to  all 144 

"Continuously  operated,"  defined .' 147 

"Operated  only  during  daytime,"  defined 147 

Operators  at  local,  as  clearly  within  purpose  of  Hours  of  Service  Act  as 

those  in  train  dispatchers' 158 

OFFICERS  AND  AGENTS 

Carriers  chargeable  with  knowledge  of  acts  of 115 

as  used  in  Hours  of  Service  Act,  not  restricted  to  general  offieers  and  agents.      115 

^*0N  DUTY" 

as  used  in  Hours  of  Service  Act,  defined 124 

Employees  while  deadheading,  not 126 

Firemen  watching  engines 131 

''ON  ITS  LINE" 

Cars  hauled  by  an  operating  company  over  the  tracks  of  another  carrier 

under  trackage  agreement,  hauled 34 

"ON  OR  ABOUT,"  not  fatally  defective  as  describing  occurrence  of  violation 

of  Safety  Appliance  Acts ^ 213 

OPEN  SWITCHES,  Fatigue  as  truly  a  physical  cause  of  accidents  as  broken 

rails  and 119 

OPERATED  ONLY  DURING  THE  DAYTIME,  as  used  in  Hours  of  Service 

Act,  defined 147 

See  Continuously  Operated. 

OPERATORS 

Limitation  of  service  of 143 

on  duty  6  hours,  then  after  interval  of  3,  for  3  additional  hours,  not  on 

duty  for  longer  period  than  9  hours  in  24-hour  period 151 

on  duty  more  than  9  or  13  hours  in  24-hour  period  need  not  be  continu- 
ously on  duty  to  constitute  violation  of  Hours  of  Service  Act 152 

50611—15 18 


274  INDEX. 


OPERATORS— Continued.  Page. 
may  continue  on  duty  in  excess  of  the  normally  permitted  periods  in  case 

of  ca8ualt3%  unavoidable  accident  or  act  of  God 160 

Wrecks  attributable  to  unavoidable  causes,  Held  to  excuse  excess  service 

of 160 

SerA'ice  of.  at  local  stations,  Avithin  purpose  of  Hours  of  Service  Act 158 

ORDERS 

comprehends  any  communication  of  information  or  instructions  relative 

to  movement  of  train 145 

Waiting  for,  not  an  excuse  for  excess  service 171 

Diverting,  change  destinations  of  shipments 184 

ORDERS  OF  THE  INTERSTATE  COMMERCE  COMMISSION 

Re  Percentage  of  Power  Brakes 244 

Re  Standard  Height  of  Drawbars 244 

Re  Hours  of  Service  Reports 249 

persuasive  as  to  meanings  of  statutes 28 

"OTHER  EMPLOYEES,"  as  used  in  Hours  of  Service  Act,  defined 123 

OWNERSHIP  OF  DEFECTIVE  CARS,  immaterial 26 

PANAMA  CIANAL  ZONE,  Provisions  of  Safety  Appliance  Acts  extend  to. . . .        64 

PARI  MATERIA:  See  In  Pari  Materia. 

PARTICIPATION  in  interstate  commerce  renders  carriers  subject  to  Safety 

Appliance  Acts 31 

PASSENGER  CARS,  Safety  Appliance  Acts  apply  to 47 

PASSENGERS 

Acts  designed  to  promote  safety  of : 7 

Carriers  can  not  escape  liability  to,  for  laying  off  trains  under  Hours  of 

Service  Act,  if  delay  attributable  to  their  own  negligence 120 

PASSING  OR  MEETING  TRAINS,  not  an  excuse  for  excess  service 170 

PENAL,  Safety  Appliance  Acts  are 7 

PENALTIES 

recoverable  in  civil  actions 

under  Safety  Appliance  Acts 19 

under  Hours'of  Service  Act 116 

Payment  of,  to  United  States,  does  not  render  actions  criminal 20 

recoverable  in  actions  in  nature  of  actions  in  Debt. . 20 

Violation  of  Safety  Appliance  Acts  entails  two 24 

Separate,  recoverable  for  each  car  hauled  in  violation  of  Safety  Appliance 

Acts 25 

Whatever  constitutes  a  violation  in  action  for  damages  likewise  a  violation 

in  action  for 12,  24 

Separate,  recoverable  for  each  employee  remaining  on  duty  in  excess  of 

permitted  periods 118 

under  Hours  of  Service  Act,  determinable  by  courts 119 

for  violations  of  Order  requiring  reports  fixed  by  section  20  of  Act  to  regulate 

commerce 176 

Substantial  violations  of  Hours  of  Service  Act  sho\ild  never  be  satisfied  by 

merely  nominal 118 

PEREMPTO  !y  INST:?UCTI0NS:  See  Directed  Verdict. 
PERIOD 

as  used  in  Hours  of  Service  Act,  defined 150 

An  operator  on  duty  for  6  hours,  then  after  interval  of  3,  for  3  additional 

hours,  not  on  duty  for  longer,  than  9  hours 151 

See  Intermissions. 


INDEX.  275 


Pago. 

''PERMIT "  as  used  in  Hours  of  Service  Act,  defined 115 

PERSONAL  INJURY 

General  rules  of  law  applied  in  actions  for * 220 

Acts  designed  to  decrease  number  of  instances  of 233 

See  Actions  for  Personal  Injury. 
PERSONAL  INTEREST  of  witnesses  no  reason  for  discrediting  testimony.. .  205 
PIN.  Absence  of,  at  end  of  trip,  evidence  of  defective  condition  at  commence- 
ment of  journey 76 

See  Clevis  Pin. 

'*  PLACES,"  as  used  in  Hours  of  Service  Act,  defined 143 

PLEADING,  PRACTICE  AND  PROCEDURE,  General  rules  of 211 

POINTS:  See  Repair  Points. 

POLICE  POWER  of  States  validly  exercised  in  regulation  of  instrumentalities 

of  commerce 189 

POOR  COAL,  Use  of,  not  an  excuse  for  excess  service 170 

PORTO  RICO,  Provisions  of  Safety  Appliance  Acts  extend  to 64 

POSITIVE  TESTIMONY 

jjreferable  to  negative  testimony 206 

of  negative  fact,  Testimony  of  company  inspector  with  respect  to  inspection 

of  particular  cars  and  failure  to  discover  particular  defects 207 

POWER 

to  regulate  commerce,  general 186 

of  Congress  over  interstate  commerce : 

as  complete  on  land  as  on  navigable  waters J  87 

supreme  and  paramount  to  authority  of  all  States 187 

POWER  BRAKES 

General  requirements  with  respect  to 65 

required  in  interyard  or  switching  movements 52 

Engine  and  tender  to  be  counted  as  two  cars  in  computing  percentage  of . .  66 

Cars  with  brakes  cut  out  cease  to  be  cars  equipped  with 66 

Requirement  of  efficient,  presupposes  terminal  inspection  of 67 

"Associated,"  defined,  as  used  in  section  of  Acts  requiring 65 

POWER  DRIVING  WHEEL  BRAKES  AND  TRAIN  BRAKE  SYSTEMS  65 

PRACTICE,  General  rules  of 211 

PREPARATION  OF  COUPLERS,  part  of  coupling  operation 74 

PREPARATORY  SERVICE  of  employees  subject  to  Hours  of  Service  Act, 

computed  as  time  on  duty 126 

PREPONDERANCE  OF  EVIDENCE 

defined 202 

sufficient  to  establish  allegations  in  declarations  under  Safety  Appliance 

and  Hours  of  Service  Acts 201 

PREVENTIVE,  Safety  Appliance  Acts  are 7 

PROCEDURE,  General  rules  of 211 

PRODUCTS,  Hauling  by  an  interstate  carrier  of  its  own,  interstate  commerce . .  45 
PROJECTING  LOADS,  Safety  Appliance  Acts  prohibit  use  of  couplers  inop- 
erative by  reason  of 78 

PROOF:  See  Burden  of  Proof.  / 

PROPERTY,  Hauling  by  ititerstate  carrier  of  its  own,  interstate  commerce. . .  46 

PROSECUTIONS,  Diligence  will  obviate  occasion  for 14 

PROVISOS 

Office  of,  generally 211 

Defendants  must  bring  themselves  strictly  within  terms  of 212 

Government  need  not  negative,  in  actions  under  Acts 211 


276  INDEX. 


PROVISOS— Continued. 

in  Safety  Appliance  Acts:  Page. 

General  provisions 90 

declaratory  of  judicial  interpretation  of  Acts  as  previously  amended . .  97 
Carriers  in  order  to  bring  themselves  within  terms  of, 

must  establish  necessity  of  movement  for  repair 98 

must  show  that  defects  could  not  have  been  repaired  at  point  of 

discovery 100 

do  not  permit  movement  of  defective  cars  by  means  of  chains  in 

revenue  trains 100 

have  no  application  to  violations  of  Acts  as  previously  amended 101 

in  section  2  of  Hours  of  Servdce  Act: 

General  pro\dsions  of 159 

apply  to  all  offices  in  which  train  orders  are  handled 144 

in  section  3  of  Hours  of  Service  Act: 

General  pro\dsions  of 160 

apply  to  service  of  operators  no  less  than  to  that  of  employees  in  train 

service 160 

PROXIMATE  CAUSE  in  actions  for  personal  injury: 

ordinarily  a  question  for  jury 230 

a  question  of  law  where  facts  are  undisputed 230 

PULLED  OUT  DRAWBARS  not  an  excuse  for  excess  service 170 

PUNCTUATION,  Uncertainty  in  interpretation  of  statutes  may  be  removed 

by  appropriate 194 

PURE  FOOD  AND  DRUGS  ACTS,  Safety  Appliance  Acts  to  be  construed 

similarly  to 21 

PURPOSE 

of  Safety  Appliance  Acts ". 7 

of  Hours  of  Service  Act 106 

RAILROADS 

Definitions,  general 29 

as  used  in  Hours  of  Service  Act,  defined 121 

devoted  to  public  use  are  common  carriers 29 

Receivers  of,  are  common  carriers 121 

generally  engaged  in  interstate  commerce  subject  to  Safety  Appliance  Acts .  30 

as  highways  of  interstate  commerce 41 

engaged  in  interstate  commerce,  Courts  may  take  judicial  notice  of 30 

RAILS 

and  roadway  of  interstate  carriers,  instrumentalities  of  interstate  commerce .  190 

"Any  car,"  comprehends  all  cars  running  on 46 

Broken,  not  an  excuse  for  excess  service 169 

Frost  on,  not  an  excuse  for  excess  service 169 

Fatigue  as  truly  a  physical  cause  of  accidents  as  broken 119 

Employees  entering  between,  not  chargeable  with  contributory  negligence .  229 

REASONABLE  SUBSTITUTES    for   handholds,    compliance    with    Safety 

Appliance  Acts 85 

REASONABLY  SAFE  TOOLS  AND  APPLIANCES,  common  law  duty  of 

carriers  to  provide 232 

REBILLING  of  shipments  does  not  affect  interstate  character 184 

RECEIVERS  of  railroads,  common  carriers 121 

RECORDS  of  defendant  carriers  admissible  when  offered  by  Government 

without  strict  proof,  as  in  nature  of  admissions 208 

REGULARLY  USED  in  interstate  commerce.  Safety  Appliance  Acts  apply 

to  all  cars '*2 

See  Generally  Engaged. 


INDEX.  277 


RELEASE  FROM  DUTY,  in  order  to  break  continuity  of  service  must  be 
granted  in  good  faith  and  under  such  circumstances  as  will  permit  of  rest 

and  recuperation 142 

See  Intermissions. 

REMEDIAL 

Safety  Appliance  Acts  are 7 

Hours  of  Service  Act  is 116 

REPAIR  V 

Safety  Appliance  Acts  require  that  appliances  shall  be  maintained  in 

appropriate 10 

Temporary  stoppage  of  car  for  purpose  of,  does  not  withdraw  it  from  uses 

of  interstate  commerce 181 

Necessity  of  movement  for,  a  question  for  jury 100 

Carriers  under  proviso  in  Act  of  1910,  must  establish  necessity  of  movement 

alleged  to  have  been  for  purpose  of 98 

REPAIR  POINTS 

must  be  maintained  by  carriers  at  reasonable  intervals  along  their  lines C3 

Defective  cars  never  permitted  to  be  hauled  away  from 95 

See  Nearest  Repair  Point. 

REPORTS  OF  EXCESS  SERVICE:  See  Hours  op  Service  Reports. 

REVENUE  LAWS,  Safety  Appliance  Acts  analogous  to 21 

REVENUE  TRAINS,  Proviso  in  Act  of  1910  does  not  permit  us©  or  hauling  of 

defective  cars  by  means  of  chains  in 100 

ROADWAY  AND  RAILS  of  interstate  carriers,  instrumentalities  of  inter- 
state commerce 190 

RULES 

Duty  of  carriers  to  promulgate,  for  safety  of  employees 232 

Mere  promulgation  of,  without  enforcement,  does  not  excuse  a  carrier  from 

UabiUty  under  mandatory  statute 232 

RUNNING  FOR  OR  TAKING  WATER,  not  an  excuse  for  excess  service. . .      170 

SAFETY  APPLIANCE  ACTS 

Federal: 

Nature  and  Purpose 7 

Construction  and  Interpretation 9 

Scope 28 

Power  Brakes 65 

Couplers 68 

Handholds 83 

Drawbars 86 

Handbrakes 89 

Exceptions 90 

Text 237 

analogous  to  Hours  of  Service  Act 116 

distinguishable  from  Employers'  Liability  Acts 23 

not  in  pari  materia  with  Act  to  regulate  commerce 22 

Government  need  not  negative  provisos  in 211 

of  a  State,  not  invalid,  ir  consistent  with  provisions  of  federal  Acts 189 

SAFETY  APPLIANCES  designed  to  secure  compliance  with  the  Acts  must 

be  operative 18 

SCOPE 

of  Safety  Appliance  Acts 28 

of  Hours  of  Service  Act 120 


278  INDEX. 


Pago. 

SECRET  INTENTION  of  legislature  not  to  be  construed  into  a  statute 193 

SENSIBLY  CONSTRUED,  All  statutes  to  be 197 

SERVICE 

of  employees  subject  to  Hours  of  Service  Act,  not  to  be  extended  by  duties 

unconnected  with  movement  of  train 130 

Brief  intermissions  do  not  break  continuity  of 138 

Indeterminate  intermissions  do  not  break  continuity  of 140 

Intermissions,  in  order  to  break  continuity  of,  musj;  be  granted  in  good  faith .  142 
If  an  operator  remains  on  duty  in  excess  of  9  or  13  hours  in  a  24- hour  period, 

immaterial  that  he  may  not  be  engaged  in  continuous 152 

Carriers'  Reports  of  Excess 173 

SHAKER  RODS,  Defective,  not  an  excuse  for  excess  service 169 

"SHIMS,"  defined 87 

SHOVEL  CARS,  Safety  Appliance  Acts  apply  to 47 

SPECIFIC  PERFORMANCE  of  contracts  not  to  be  enforced,  to  maintain 
division  point  where  continuance  would  preclude  observance  of  Hours  of 

Service  Act 217 

STANDARD  HEIGHT  OF  DRAWBARS:  ^ee  Drawbars. 
STANDARDIZATION  ORDER  of  the  Commission,  persuasive  as  to  meaning 

of  Safety  Appliance  Acts 28 

STATES 

Interstate  commerce  consists  essentially  of  commercial  intercourse  be- 
tween   179 

Interstate  commerce  comprehends  traffic  hauled  from  one  point  in  a 
State  to  another  point  in  same  State,  passing  en  route  through  an- 
other State  or 180 

Police  power  of,  over  instrumentalities  of  interstate  commerce,  may  be 

validly  exercised  consistently  with  provisions  of  fedeial  Acts 189 

Cars  to  which   Safety  Appliance  Acts  apply,  so   subject   to   their  t^nns 

while  moving  within  single 48 

statutes  conflicting  with  valid  federal  Acts  are  void 187 

STATUTES 

modifying  common  law  should  be  strictly  construed 197 

to  be  sensibly  construed - 197 

Courts  in  construing,  may  consult  history  of 196 

ConBtruction  of,  out  of  place  where  unambiguous 194 

Purpose  of,  exhibited  in  title  and  enacting  clause 193 

of  States  interfering  with  interstate  commerce,  void 187 

need  not  be  described  in  terms  if  sufficient  facts  are  stated  in  declaration 

to  bring  case  within 231 

Purpose  of  provisos  ordinarily  to  restrain  or  modify  enacting  clauses  of 211 

not  to  be  frittered  away  by  judicial  construction 197 

Text  of 

Safety  Appliance  Act 

of  March  2,  1893  as  amended  April  1,  1896 237 

of  March  2,  1903 239 

of  April  14,  1910 240 

Sundry  Civil  Act  of  March  4,  1911     [Excerpt] 243 

Sundry  Civil  Act  of  June  28,  1902     [Reference  to] 243 

Hours  of  Service  Act 246 

Act  to  regulate  commerce     ]Excerpt] 248 

Ash  Pan  Act 254 

STATUTORY  CONSTRUCTION,  General  rules  of 192 


INDEX.  27^ 


Pa«e. 
STOPPAGE  OF  CAR,  for  repair,  does  not  withdraw  it  from  uses  of  interstate 

commerce 181 

STREET  CAR  COMPANIES:  -See  Electric  Railways. 

STUB  PILOTS,  Substitution  of,  for  long  pilots  previously  used,  to  install 

automatic  couplers,  not  a  violation  of  Safety  Appliance  Acts 228 

SUBSTITUTES  P^OR  HANDHOLDS, 

Any  reasonable,  compliance  with  Safety  Appliance  Acts 85 

Sufficiency  of,  a  question  for  jury 208 

SUDDEN  ILLNESS  may  constitute  an  emergency  within  purview  of  Hours 

of  Service  Act 172 

SUPPLEMENTAL  SERVICE  of  employees  subject  to  Hours  of  Service  Act, 

to  be  computed  as  time  on  duty 126 

SUPREME  COURT  OF  DISTRICT  OF  COLUMBIA  has  jurisdiction  of 

actions  under  Safety  Appliance  and  Hours  of  Service  Acts 218 

SWITCHES,  Fatigue  as  truly  a  physical  cause  of  accidents  as  open 119 

SWITCHING  MOVEMENTS,  Safety  AppUance  Acts  apply  to 49 

SWITCH  TENDERS,   using  telephone  for  communication  of  train  orders, 

subject  to  proviso  in  section  2  of  Hours  of  Service  Act 153 

TAKING  OR  RUNNING  FOR  WATER  not  an  excuse  for  excess  service 170 

TELEPHONE  AND  TELEGRAPH 

Levermen  and  switchtenders,  using,  for  communication  of  train  orders, 

subject  to  provisions  of  section  2  of  Hours  of  Service  Act 158 

Employees  in  train  service  may  occasionally  use,  in  cases  of  emergency. . .      157 

TENDERS,  Safety  Appliance  Acts  apply  to 47 

TENDERS  AND  ENGINES  to  be  counted  as  two  cars  in  computing  percent- 
age of  power  brakes 66 

TERMINAL,  as  used  in  Hours  of  Service  Act,  defined 163 

TERMINAL  INSPECTION  of  power  brake  equipment  required 67 

TERRITORIES,  of  United  States,   Safety  Appliance  Acts  apply  to  traffic 

hauled  within 35 

TESTIMONY,  Positive,  preferable  to  negative 206 

See  Evidence. 

TOOLS,  Duty  of  carriers  to  provide  reasonably  safe 232 

TOWERMEN  AND  SWITCHTENDERS  handling  train  orders  by  means  of 

telephone  or  telegraph,  subject  to  proviso  in  section  2  of  Hours  of  Service 

Act 15S 

TOWERS,  OFFICES,  PLACES  AND  STATIONS,  as  used  in  Hours  of  Service 

Act,  defined 143 

See  Places. 
TRACK,  Safety  Appliance  Acts  prohibit  use  of  couplers  inoperative  by  reason 

of  curvature  in 77 

TRACKAGE  AGREEMENT,  Cars  hauled  by  one  carrier  over  tracks  of  another, 

under,  hauled  "on  the  line  "  of  operating  carrier 34 

TRAFFIC 

hauled  between  points  in  same  State,  passing  en  route  through  portion  of 

another  State,  is  interstate  commerce 180 

Congestion  of,  not  an  excuse  for  excess  service 169 

See  Interstate  Commerce. 

TRAIN   BAGGAGEMEN  subject  to  Hours  of  Service  Act 122 

TRAIN   BRAKE  SYSTEMS:  See  Power  Brakes. 

TRAIN   DISPATCHER'S  OFFICE,   Service  of  an  operator  at  local  station 

as  clearly  within  purpose  of  Hours  of  Service  Act,  as  that  of  similar 

employee  in 15t 


280  INDEX. 


Page. 

TRAIN  ORDERS,  Hours  of  Service  Act  applies  to  all  offices  handling 144 

See  Orders. 
TRAINS 

defined 38 

Delay  in  starting,  not  an  excuse  for  excess  service 169 

Excess  service  not  to  be  excused  by  delays  ordinarily  to  be  expected  in 

operation  of 168 

Meeting  or  passing,  not  an  excuse  for  excess  service 170 

Safety  Appliance  Acts  apply  to  all  cars  hauled  in  interstate 36 

Use  of  handbrakes  to  secure  safety  of,  not  prohibited  by  Safety  Appliance 

Acts 66 

"Order,"  as  used  in  Hours  of  Service  Act,  comprehends  any  communica- 
tion of  information  or  instructions  relative  to  movement  of 145 

See  Revenue  Trains;  Work  Trains. 

TRIFLING  INTERRUPTIONS   to  not  break  continuity  of  operation   of 

offices  otherwise  continuously  operated 149 

See  Intermissions. 

TRIP,  Occurrence  of  excusable  delay  after  departure  of  crew  from  terminal, 

suspends  operation  of  Hours  of  Service  Act  for  given 165 

TRUNK  LINE  RAILROADS,  generally  engaged  in  interstate  commerce, 

Courts  may  take  judicial  notice  of 30 

TWENTY-EIGHT  HOUR  LAW 

Hours  of  Service  Act  distinguishable  from 116 

Violations  of  Hours  of  Service  Act,  Held  more  serious  than  those  of 117 

UNAVOIDABLE  ACCIDENT  defined 160 

See  Provisos. 

UNBROKEN  INTERVALS  OF  TIME    "Continuous"   and   "Consecutive" 

not  restricted  to 137 

UNCERTAINTY  in  interpretation  of  statutes  may  sometimes  be  removed  by 

appropriate  punctuation 194 

UNITED  STATES,  Payment  to,  of  penalties  recovered  under  Safety  Appli- 
ance and  Hours  of  Service  Acts,  does  not  render  actions  thereunder  crimi- 
nal prosecutions .- 20 

See  Government. 

UNIT  OF  VIOLATION 

of  Safety  Appliance  Acts:  Cars  hauled  in  violation  of  statute 25 

of  Hours  of  Service  Act:  Employees  remaining  on  duty  in  excess  of  per- 
mitted periods 118 

UNCOUPLING  LEVERS:  See  Levers. 

UNCOUPLING  OPERATIONS,  Provisions  of  Safety  Appliance  Acts  that 
men  shall  not  be  required  to  go  between  cars,  apply  to  coupling  as 
well  as  to 68 

UNLOADED  CARS:  See  Empty  Cars. 

UNNECESSARY  HAULING  OF  CHAINED  UP  CARS,  not  an  excuse  for 

excess  service 170 

USE  of  each  car  in  violation  of  Safety  Appliance  Acts,  a  separate  violation . .        25 

'^USED" 

defined 37 

of  broader  significance  than  "hauled  " 38 

See  Actually  Used;  Commercially  Used;  Regularly  Used. 

VERDICT:  See  Directed  Vhrdict. 


IKDEX.  281 


VIOLATIONS 

of  Safety  Appliance  Acts:  Page. 

Knowledge  not  an  element  of 14 

Inconvenience  not  an  element  of 15 

Intention  not  an  element  of IS 

Failures  of  employees  to  operate  equipment,  not 17 

Whatever  constitutes,  in  actions  for  personal  injury,  likewise  viola- 
tions in  penal  actions 12,  24 

entail  two  penalties 24 

Hauling  of  each  car  in  defective  condition,  separate 25 

not  excused  by  diligence 13 

not  excused  by  carriers'  custom 27 

Operated  handbrakes  to  insure  safety  of  trains,  not 66 

Proviso  in  Act  of  1910  has  no  retrospective  application  to  previous. .  101 

of  Hours  of  Service  Act: 

Knowledge  not  an  element  of 113 

Previous  instructions  to  contrary  not  an  element  of 113 

Held  more  serious  than  those  of  28-hour  law 117 

If  substantial,  should  not  be  satisfied  by  merely  nominal  penalties. .  118 

Economical  reasons  alone  can  never  justify 172 

of  Commission's  Order  requiring  reports,  punishable  by  penalty  fixed  by 

section  20  of  Act  to  regulate  commerce 176 

of  statutory  duty  negligence  per  se 226 

In  order  to  bring  case  within  purview  of  Acts,  causal  connection  must  be 

established  between  injuries  sustained  and 231 

WAITING  FOR  HELPER  ENGINE  not  an  excuse  for  excess  service 171 

WAITING  FOR  ORDERS,  not  an  excuse  for  excess  service 171 

WATCHING  ENGINES:  ^ee  Engine  Watchmen. 
WATER 

Taking  or  running  for,  not  an  excuse  for  excess  service 170 

Injectors  failing  on  account  of  warmth  of,  not  an  excuse  for  excess  service.  169 
WEATHER:  5ee  Heat. 

"WEEK,"  as  used  in  Hours  of  Service  Act,  defined 159 

WEIGHING  of  interstate  cars,  interstate  commerce 183 

WILLFUL  intention  to  violate  Acts,  not  an  element  of  their  violation 15 

WITNESSES,  Testimony  of,  not  to  be  discredited  on  account  of  personal  inter- 
est   20* 

See  Evidence. 
WORK  TRAINS 

Employees  on,  assembling  logs  for  interstate  shipment,  engaged  in  inter- 
state commerce 182 

Application  of  Safety  Appliance  Acts  to 37 

WORN  OUT  COUPLERS,  Safety  Appliance  Acts  prohibit  use  of 76 

WRECKS 

not  an  excuse  for  excess  service  if  preventable  by  diligence  and  foresight- .  171 

excuse  excess  service  of  operators  if  occasioned  by  unavoidable  causes 160 

YARD  MOVEMENTS,  Safety  AppUance  Acts  apply  to 49 

ZONE,  Provisions  of  Safety  Appliance  Acts  extend  to  Panama  Canal 64 

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